by Lucy Cheskin, Attorney Fellow at Equal Rights Advocates
On Wednesday, January 14th, the Equal Employment Opportunity Commission (EEOC) voted to rescind its internal voting procedures that had been previously approved by the commission in early January 2025. The rescission vote split 2-1 along party lines, with Republican-appointed commissioners Andrea Lucas and Brittany Panuccio voting for the rescission and the lone remaining Democratic-appointee, Kalpana Kotagal, voting against. As news breaks this week of the EEOC’s wholesale rescission of its almost 200-page 2024 Enforcement Guidance on Harassment in the Workplace, discussion of this earlier rescission will likely be somewhat overshadowed in the press. While procedural, the rescission of the voting procedures is nevertheless critical for advocates and the public alike to understand as these procedures condition the innerworkings of the commission and the balance of power at the top of the agency.
As Commissioner Kotagal emphasized in her opening statement at the public meeting of the commission to discuss rescission, the EEOC was created as and has long operated as a bipartisan body, making tools such as the now-rescinded voting procedures which protected the minority voice on the commission essential to retaining this foundational characteristic of the body. The voting procedures critically provided any commissioner the ability to “agenda” an item, in other words, to bring an item up for commission discussion in an open public meeting prior to a vote on the issue. This procedure not only gave commissioners a voice but also provided transparency to the public on commission deliberations. The voting procedures also created timelines that allowed commissioners to sufficiently review regulations, guidance documents, and litigation recommendations prior to a commission vote, ensuring that votes occurred only after commissioners had a reasonable time to review the document or decision in question.
While Chair Lucas and Commissioner Panuccio both focused their remarks on the fact that the now-rescinded voting procedures had only been formalized by the commission in the final month of the Biden administration, Commissioner Kotagal and former EEOC leaders have explained that these procedures were in fact codifications of long-standing agency practice. While not formalized until January 2025, these practices had long been operative at the commission and did not reflect sudden changes in agency operation. Beyond the differing understandings about the timeline and history of the voting procedures, the commissioners also took strikingly opposite stances on the implications of rescinding the procedures. Chair Lucas and Commissioner Panuccio argued that the rescission would allow the Chair more flexibility and would provide the Chair needed discretion in determining which items to bring to discussion at public meetings. In contrast, Commissioner Kotagal emphasized the fact that once these procedures were rescinded, neither she nor Commissioner Panuccio would have any mechanism for holding the Chair accountable or for reinstating the procedures since the power would lie only in the hands of the Chair.
To combat these concerns, Commissioner Kotagal proposed two paths forward, first moving to postpone consideration of the rescission for three months and then later moving to temporarily suspend the procedures for three months rather than rescind them. She argued that these “wait-and-see” alternatives would allow the commissioners to understand how the voting process would function without the procedures in place and how agenda requests would be handled by the Chair and then make a reasoned decision regarding the procedures. Neither of these motions were seconded, however, and the voting procedures were swiftly rescinded.
Notably, Chair Lucas concluded the meeting with a strong assertion that the EEOC would be swiftly executing the President’s agenda and would not be “dilly-dallying” in doing so. As has already been seen by the commission’s rescission of its robust harassment guidance only a week later, this swift execution of the agenda has already begun. The commission will certainly continue to charge forward on this path. Only now, commissioners have lost an important procedural protection that allowed for open transparent discussion of decisions that have powerful consequences and broad impact for workers across the country as they navigate understanding and vindicating their rights in discriminatory or hostile workplaces.