Just after Donald Trump’s election in November 2024, I wrote about the possible changes to the Equal Employment Opportunity Commission (EEOC) he might make in the new Trump administration. [Read more: What Does Trump’s Election Mean for Employment Law?] [Read More: What is the Equal Employment Opportunity Commission] Possible changes I discussed included the EEOC’s DEI (diversity, equity, inclusion) initiatives, the EEOC’s focus on LGBTQ+ protection (including bathroom use), and data collection from employers. We also expected that he would fire the general counsels for the EEOC and the National Labor Relations Board (NLRB), which commonly happens under a new party administration. Now that we are ten days into Trump’s second term, we have a much better idea of his proposed changes, which go even further than expected.
On Monday, Trump also fired NLRB member Gwynne Wilcox and EEOC commissioners Jocelyn Samuels and Charlotte Burrows. Normally the EEOC has five commissioners, with at least three needed to form a quorum sufficient to make any decisions on enforcement, regulations, and litigation focus; they serve five year terms. The NLRB is also made up of five board members, serving similar five year terms. The Board also needs a quorum in order to operate. Typically, as the commissioner’s or member’s terms end, the current president replaces them with someone of their own party wherever possible. Thus, the makeup of the EEOC and the NLRB change slowly. But Trump has bypassed that process in order to remove just enough of the members and commissioners so as to hobble the agencies moving forward (and, eventually, to replace them with people loyal to Trump).
But Can Trump Remove These Members and Commissioners on His Own Executive Authority?
Are Trump’s actions even legal? Does he have the authority to fire the commissioners and the members by himself? Well, like with most of Trump’s actions in office, we’re about to find out.
The National Labor Relations Act (NLRA), which establishes the NLRB and its members, provides that members can only be removed after a hearing and after proving malfeasance or neglect of duty. [Read More: Filing NLRB Claims in South Carolina] Based on these facts, Trump is clearly violating federal law by firing the members without due process.
However, it’s more of an open constitutional question for the EEOC. Title VII of the Civil Rights Act, which established the EEOC, doesn’t mention steps for removing commissioners; it just mentions the five year terms. Trump is now implementing a preplanned push to challenge the limits of executive power. Under the unitary executive power theory in constitutional law, the president exercises complete control over the executive branch, including the various executive agencies, like the NLRB and the EEOC. This theory holds sway with some of the more conservative Supreme Court justices, such as Clarence Thomas and Neil Gorsuch, who have expressed support for broader executive power for the president, especially when it comes to federal agencies. Trump’s recent actions will, like many of his other recent executive orders, reach the Supreme Court at some point. If a majority of the Supreme Court goes with Gorsuch and Thomas, we would see a pretty massive shift in executive control over agencies. Trump’s actions follow many of the proposals set out by the Heritage Foundations’ Project 2025, and the Heritage Foundation has long pushed the unitary executive power theory. Trump’s actions seem designed to push this issue towards the Supreme Court.
What Impact Does that Have On South Carolina Employees?
While we wait for the Supreme Court to issue a decision, which could take years, we’ll have to see how Trump handles the EEOC and NLRB moving forward. If he fails to appoint new commissioners and members, then those agencies have no quorum and will have limited function (at least at the higher levels) in the years to come. However, if he simply appoints new members and commissioners that are loyal to him, then we will see changes internally as well. The new EEOC chair, Andrea Lucas, has already announced rollbacks to the EEOC’s DEI initiatives, a renewed focus on biological sex and single-sex facilities like bathrooms, changes to pronoun usage and gender identify policies, and possible changes to workplace harassment guidance.
Practically speaking, I don’t think these changes will impact South Carolina employees immediately. I have many currently pending cases with the EEOC and NLRB, but I don’t expect that Trump’s orders will affect the processing of those charges at the individual case level. For most discrimination cases, I’m required to go through the EEOC first before I can file my own lawsuit, but the EEOC does very little of substance on a charge where the employee has their own attorney already. My cases should still move forward as normally.
Most of the changes to the NLRB and the EEOC will eventually impact employers more, as the EEOC’s enforcement focus changes, including where and how often the EEOC brings lawsuits against employers directly, although only a tiny percentage of charges ever get litigated by the EEOC anyway.
For now, we’ll wait and see how the chaos plays out and how the Supreme Court rules. In the meantime, if you’ve been subjected to harassment or discrimination in the workplace, you still need to speak with a South Carolina employment lawyer about your legal options. You can call us at (864) 233-4351 or reach us through our Contact Us page.
