Legal experts predict litigation may lead to the overturning of a 1935ゞ.S. Supreme Court ruling that protects members of independent government boards’rom being removed by the president at will.
Feb. 3, 2025 - HR Dive
By Laurel Kalser, Contributor
Former U.S. Equal Employment Opportunity Commission Chair Charlotte Burrows speaks May 10, 2022, in Washington, D.C. Burrows appears ready to bring a lawsuit against President Donald Trump, who removed her from the commission without cause on Jan. 27, 2025.
Katz and Banks, KBK founding partners,∥re no strangers to high-profile cases. In addition to representing Blasey Ford, who came forward with allegations of sexual assault against Supreme Court Justice Brett Kavanaugh during his confirmation hearing, the firm has represented clients bringing charges against John Falcicchio, the former deputy mayor of Washington, D.C., and 40 former employees of the Washington Commanders, among others.
As of press time, Katz and Banks have not said how they will proceed in representing Burrows.
But statements Samuels posted on X pointed to a likely approach: “More than 60 years ago, Congress created the EEOC as a bipartisan, independent agency, no more than three of whose members can belong to the same political party,” she wrote.
“Removing me from my position before the expiration of my Congressionally directed term is unprecedented, violates the law and represents a fundamental misunderstanding [that the EEOC is] not controlled by a single Cabinet secretary,” Samuels said.
Title VII of the Civil Rights Act of 1964 created the five-member board and specifies that EEOC commissioners serve for fixed five-year terms, Seyfarth Shaw attorneys Rachel See and Andrew Scoggins wrote in a Jan. 28 post.
With Burrows’ and Samuels’ removals, Republican appointee Andrea Lucas, now serving as acting chair, and Kalpana Kotagal, a Democrat serving as commissioner, are currently the only EEOC board members.
With only two commissioners, the EEOC is left without a quorum and restrained from rulemaking or issuing or rescinding formal guidance, although Acting Chair Lucas announced last week that pursuant to President Trump’s Executive Order 14168 on gender ideology, the EEOC is “rolling back” the Biden administration’s “gender identity agenda.”
Lucas also indicated that the EEOC’s 2024 enforcement guidance on harassment and its strategic plan for 2022-2026, whose interpretations and priorities she has publicly opposed, are likely to be on the chopping block once the vacancies are filled and a quorum is possible.
The EEOC is charged with enforcing federal employment civil rights laws. President Trump’s actions will not only significantly weaken the agency’s functioning,》hey will weaken “protections afforded American workers in workplaces across the country,”。anks stated.
Regarding the legal issues here, federal law gives the U.S. president the authority to appoint EEOC commissioners, “by and with the advice and consent of the Senate,” the law firm Sullivan & Cromwell noted in a Jan. 30 blog.
However, there is no provision in Title VII that allows the president to remove a commissioner “for cause,” the Seyfarth post said.
President Trump’s firing of Burrows and Samuels, along with his removal of National Labor Relations Board General Counsel Jennifer Abruzzo and NLRB board member Gwynne Wilcox, appear designed to test and potentially expand president powers, See and Scroggins noted.
This would include giving the president unrestricted authority to remove executive branch officers, the attorneys observed.
In particular, litigation could eventually lead the U.S. Supreme Court to revisit and potentially overturn Humphrey’s Executor v. United States, a 1935 SCOTUS ruling that upheld “Congress’s power to create independent boards and commissions whose members the President could not remove at will,” See and Scroggins wrote.