April 10, 2025 Update. On April 9, 2025, former Equal Employment Opportunity Commission Commissioner Jocelyn Samuels filed a lawsuit in the U.S. District Court for the District of Columbia challenging her removal and seeking an injunction to return her to her former position. The complaint alleges that her removal violated Title VII of the Civil Rights Act on the grounds that the Act does not authorize a Commissioner’s removal “prior to the expiration of her term” and “contains a Holdover Clause providing that Commissioners shall continue to serve until their successors are appointed and qualified, with limits on the maximum length of the holdover period.”
Additionally, on April 9, 2025, Chief Justice Roberts issued an order that stays the district court’s March 6, 2025 order restoring National Labor Relations Board member Gwynne Wilcox to her former position, pending a “further order” of the Supreme Court.
April 8, 2025 Update. On April 7, 2025, the U.S. Court of Appeals for the D.C. Circuit, in an unsigned order, vacated the March 28, 2025 panel order staying the district court decision that restored National Labor Relations Board member Gwynne Wilcox to her former position. The full Court of Appeals will reconsider that order on an “expedited schedule.” The decision effectively restores Wilcox to her position while the full Court of Appeals reconsiders the merits of the challenge to her removal.
March 31, 2025 Update. On March 28, 2025, the U.S. Court of Appeals for the D.C. Circuit issued a stay of the district court decision that restored National Labor Relations Board member Gwynne Wilcox to her former position, which effectively removes Wilcox from the National Labor Relations Board while litigation regarding her removal continues. In separate concurring opinions, two judges expressed the view that the government is likely to prevail on its argument that the President has the power to remove National Labor Relations Board members.
March 25, 2025 Update. On March 25, 2025, President Trump renominated the Acting Chair of the EEOC, Andrea Lucas, to serve a second term as an EEOC Commissioner.
March 6, 2025 Update. A federal court ordered National Labor Relations Board member Gwynne Wilcox reinstated to her former position, finding that her January 27 removal was “unlawful” and violated the National Labor Relations Act, 29 U.S.C. § 153(a). The court stated that Wilcox may only be removed prior to the expiration of her term “upon notice and hearing, for neglect of duty or malfeasance in office.” The President immediately appealed.
February 5, 2025 Update. National Labor Relations Board member Gwynne Wilcox has filed a lawsuit in the U.S. District Court for the District of Columbia challenging her removal and seeking an injunction to return her to her former position. The complaint alleges a violation of the National Labor Relations Act, which provides that “[a]ny member of the [NLRB] may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”
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On January 27, 2025, President Trump removed Equal Employment Opportunity Commission (“EEOC”) Commissioners Charlotte Burrows and Jocelyn Samuels and National Labor Relations Board (“NLRB”) member Gwynne Wilcox, all Democrats, in a series of unprecedented moves. The removed officials all indicated they intend to, or are considering, filing legal challenges to their removals. The removals leave both federal agencies without a quorum.
As expected, the President also removed NLRB General Counsel Jennifer Abruzzo, as well as EEOC General Counsel Karla Gilbride.
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EEOC
On January 28, 2025, EEOC Commissioners Charlotte Burrows and Jocelyn Samuels announced that they had been unexpectedly removed by President Trump on January 27, prior to the expiration of their five-year terms. In separate statements, Commissioners Burrows and Samuels both indicated that they were considering their “legal options.” Federal law provides that EEOC Commissioners “shall be appointed by the President by and with the advice and consent of the Senate for a term of five years” and that “not more than three [Commissioners] shall be members of the same political party.” Given these five-year terms, Republicans were not expected to have a majority of EEOC Commissioners until 2026.
At this time, the most recently appointed Democratic Commissioner, Kalpana Kotagal, remains on the Commission until the end of her term in July 2027. Due to an existing vacancy, however, the removal of Burrows and Samuels leaves the EEOC with two members, short of its three-Commissioner required quorum. As reported in our memorandum, last week, President Trump appointed Andrea Lucas, the sole Republican Commissioner, acting Chair.
On January 27, 2025, the EEOC’s General Counsel, Karla Gilbride, was also removed.
NLRB
Following her removal, NLRB member Wilcox released a statement on January 28, 2025, indicating her intention to pursue “all legal avenues to challenge” her removal, which she contends “violates long-standing Supreme Court precedent.” Federal law provides that “[a]ny member of the [NLRB] may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”
Last week, President Trump named Marvin Kaplan, the sole Republican board member on the NLRB, as its chair. Due to existing vacancies, the removal of Wilcox leaves the Board with just two members, one short of the required three-member quorum. David Prouty, a Democratic NLRB member, is the other remaining member until his term ends in August 2026.
Wilcox and Abruzzo had taken broad views of labor law protections. As a result, these changes are expected to lead to enforcement approaches that are more favorable to employers. But, without a quorum of Board members, current NLRB rules, such as the recently revised election rules, are likely to remain in effect in the short term. Additionally, without a quorum to decide new cases, recent major changes in NLRB precedent remain the law.
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President Trump’s removal of EEOC General Counsel Gilbride and NLRB General Counsel Abruzzo, was not unexpected—former President Biden similarly terminated EEOC General Counsel Sharon Gustafson and NLRB General Counsel Peter Robb in 2021. While the President’s authority to remove federal officers such as general counsel has been upheld by the Supreme Court, this is the first time a president has removed a sitting EEOC Commissioner and sitting NLRB member.
That being said, former President Biden removed Social Security Administration Commissioner Andrew Saul in 2021. A 2021 Department of Justice memorandum that addressed Saul’s removal found a statutory protection that similarly provided the “Commissioner may be removed from office only pursuant to a finding by the President of neglect of duty or malfeasance in office” to be unconstitutional.
According to news reports, a White House official stated that the NLRB member and EEOC Commissioners were removed because they were “far-left appointees with radical records of upending longstanding labor law, and they have no place as senior appointees in the Trump Administration, which was given a mandate by the American people to undo the radical policies they created.”
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Find more Blog posts about litigation and regulatory developments that affect the workplace here.
View other S&C insights relating to President Trump’s recent executive orders.