Dive Brief:
- President Donald Trump has appointed Andrew Rogers as acting general counsel at the U.S. Equal Employment Opportunity Commission, the agency announced in a statement. If confirmed, Rogers will replace Karla Gilbride, whom Trump terminated last week.
- Rogers is the second Trump selection to lead the agency, after the president named Andrea Lucas acting chair on Jan. 21, as widely expected. Rogers previously served as chief counsel to Lucas, and, prior to joining EEOC, served in the Wage and Hour Division at the U.S. Department of Labor.
- “I am honored to be selected by the President to serve at the Commission,” Rogers said. “And to advance robust, high-quality, efficient, and transparent enforcement of our nation’s civil rights laws via the agency’s litigation program.”
Dive Insight:
Acting Chair Lucas expressed enthusiasm for Rogers’ selection, calling him “a brilliant lawyer, strategic thinker, and a trusted advisor.”
“He has deep and broad employment law experience between his government service with me at the EEOC and with former EEOC Commissioner Keith Sonderling at the Department of Labor’s Wage and Hour Division, as well as his time in private practice,” Lucas continued. “I look forward to partnering with Andrew in his new role to continue the important work of the agency.”
EEOC’s general counsel works with the commission to select and pursue worker’s cases in the courts. Currently, EEOC has only two commissioners, Lucas and Kalpana Kotagal, a Democrat. It is unclear whether Trump plans to leave the commission without a quorum — at least three members — or eventually nominate at least one more commissioner, attorneys at Seyfarth Shaw told HR Dive.
In its current state, however, the agency is limited in what it can accomplish.
“Without a quorum, the Office of General Counsel can file routine cases,” Rachel See, senior counsel at Seyfarth Shaw, said. “Controversial cases — big, systemic pattern or practice cases — those all require a quorum and vote.”
In January 2021, then-Chair Janet Dhillon laid out this approach for the agency, delegating some authority to the general counsel to advance cases without a quorum and a vote. Routine cases that do not meet the seven criteria Dhillon outlined in the resolution may proceed under the current commission’s makeup.
On the other hand, there are strategies EEOC could use to pursue a Trump administration agenda in a targeted way, Andy Scroggins, partner at Seyfarth Shaw, said.
“As a commissioner, Andrea Lucas made more use of Commissioner charges than her predecessors had,” Scroggins said, referring to charges initiated by a commissioner, rather than a worker, against an employer. “So she might still use Commissioner charges to go after companies that she believes may be using DEI programs or may still be supportive of their transgender employees, companies that have made a public stand that runs contrary to her beliefs.”
Following through on such an investigation would still require the cooperation of a field office and the general counsel’s office, Scroggins noted.
Without a quorum, the EEOC can also issue and revoke technical assistance, which differs from formal guidance in that it doesn’t require a majority vote of the commission. Several technical assistance documents have already “quietly” disappeared since Lucas’ designation as acting chair, including documents on AI, gender identity and sexual orientation, See said.
The agency has used technical assistance “to great effect” in the past, See added, pointing out that many of the opinions the agency issued related to COVID-19 were technical assistance documents.
In a recent LinkedIn post, Lucas said her priorities for the agency included “rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work; protecting workers from religious bias and harassment, including antisemitism; and remedying other areas of recent under-enforcement.”
Rogers, in comparison, has not outlined specific policy interests since his selection.
However the agency proceeds, the tone has been set by many of Lucas’ early actions and stated priorities.
“The EEOC has proudly been conducting training and advocacy on how to ensure equal opportunity for transgender Americans, and having that mission turned on its head — I can only imagine what whiplash people still at the EEOC are feeling,” See said.
