EEOC Chair Discusses Illegal DEI Agency Priorities Post Shutdown

By Cassie Alfheim

Blog Overview: EEOC Chair Andrea Lucas recently sat down with David Fortney of Fortney Scott to discuss EEOC's new quorum, data collection, and illegal DEI. DCI discusses the key takeaways for employers.

On November 19, 2025, recently-confirmed Equal Employment Opportunity Commission (EEOC) Chair Andrea Lucas made an appearance on premiere DC-based law firm Fortney Scott's podcast The DC Insider – Employer Update, where she was interviewed by David Fortney, the firm's co-founder.

Here are the most important takeaways from the interview:

Illegal DEI

Chair Lucas emphatically reminded the employer community that diversity, equity, and inclusion (DEI) programs, in and of themselves, do not necessarily constitute illegal DEI. However, EEOC would consider a DEI program that results in discrimination, stereotyping, or racism as illegal DEI.

Prior to the government shutdown, EEOC was focused on rooting out unlawful discrimination under the guise of employers’ DEI programs, pursuant to the January 21, 2025, Executive Order (EO) 14173 titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”

During the interview, Chair Lucas shared her assessment of employers’ reactions to executive actions like EO 14173.

• Employers who have continued their robust DEI programs as they were before January 2025. She described these employers as “die-hard” and “activists” who are standing their ground.
• Employers who have made slight changes to their DEI programs, such as renaming these initiatives without making substantive changes, that are “for show, not substance.” Chair Lucas warned that EEOC is using web archive tools and comparing to current websites to root out potential illegal DEI.
• Employers who are engaging in “significant reform,” demonstrated through “good faith compliance programs.” Chair Lucas considers these employers compliant and moving in the right direction.

For employers not shifting from a DEI-focused program to a compliance-focused program, Chair Lucas says, “consequences are coming.”

Data Collection

As of now, the EEO-1 report is a required component of a Commission regulation that remains in effect. Chair Lucas agreed that the regulation is still on the books and, if it remains in effect in spring 2026, employers should continue complying with EEO-1 filing requirements.

Chair Lucas went on to remind employers of the importance of limiting access to data regarding applicants’ and employees’ protected characteristics and discussed EEOC’s longstanding assumption that if an employer is collecting data, the employer is using the data. Chair Lucas urges employers to put guardrails around protected characteristic data and give access to only those who require it—human resources and legal counsel—and not DEI teams, business managers, or other personnel making employment decisions in order to prevent inappropriate use of this data.

EEOC’s Status

Before Brittany Bull Panuccio’s confirmation, EEOC lacked a quorum and was unable to execute on some of the Commission’s most influential actions. However, Chair Lucas described how she was still quite active with the rest of the agency in her role as Acting Chair during this time.

With EEOC’s quorum restored, Chair Lucas outlined the two “buckets” we should see a lot of activity in going forward:

• Litigation
  • With a quorum restored, the Commission can now vote to act on large-scale litigation like systemic and pattern or practice cases. The Commission can take up stickier cases like those involving controversial topics, cases in which EEOC would be taking positions contrary to circuit court precedent, and amicus briefs.
  • Chair Lucas, later in the podcast, talked about newly appointed Acting General Counsel Catherine Eschbach and her background as an “appellate wiz” and leveraging “cutting edge legal theory.” As the new head of EEOC’s litigation initiatives, Eschbach will be a driving force behind the Commission’s resurgence in large-scale litigation.
  • In her closing remarks, she indicated “extremely exciting” EEOC activities will be up for vote soon.
• Policy
  • The Commission, with a quorum, can also vote to create, revise, and rescind formal policy guidance (sub-regulatory) and regulatory actions. Appellate decisions and subpoena-related actions can resume as well.
  • Chair Lucas indicated updates would be coming to the current Pregnant Workers Fairness Act (PWFA) related injunctions.
  • Chair Lucas also indicated that educational materials have been in the works since before the government shutdown and will be made available soon.

With a quorum restored and the government shutdown ended, Chair Lucas emphasized that EEOC is back in business and will be “even more active and louder” going forward.

Stay tuned to the DCI Blog for more EEOC updates.