Week in Review – EEOC and NLRB Start Enacting Trump’s Executive Orders, Challenges to Federal Agencies’ Independence, and New Guidance on College Athletes
Each week as the new presidential administration takes shape, we get a clearer picture of how its priorities will affect federal agencies, and how those changes will affect the employers and educational institutions that interact with those agencies.
Last week, we also published alerts regarding the Department of Education’s Office for Civil Rights “Dear Colleague” letter, advising schools that they may risk losing federal funding if they continue to pursue diversity, equity, and inclusion objectives; the Department of Education’s Title IX investigations into alleged violations of the President’s “Keeping Men Out of Women’s Sports” executive order; and changes at the Department of Education
The Week in Brief:
(1) Justice Department to Stop Defending Agency Removal: On February 12, 2025, the Acting Solicitor General informed the Senate Committee on the Judiciary that the Department of Justice will no longer enforce a “cause” requirement for agency removals related to the NLRB, the Federal Trade Commission, and the Consumer Product Safety Commission. However, at least one federal court has found for an agency employee challenging their removal.
(2) NLRB Updates: While the NLRB continues to operate without a quorum, on February 14, 2025, NLRB Acting General Counsel Michael Cowen issued a memorandum rescinding 15 previous guidance memos issued by former NLRB General Counsel Jennifer Abruzzo. The rescinded memos include guidance on employment contracts, employees’ right to organize, and the status of college athletes.
(3) EEOC Drops Title VII Lawsuits Asserting Transgender Protections: On February 12, 2025, the began EEOC moving to dismiss several lawsuits it had brought alleging discrimination against transgender or gender nonconforming workers, citing President Trump’s executive order, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”
(4) Trump Administration Rescinds Biden-era College Athlete Guidance under Title IX: On February 12, 2025, the U.S. Department of Education’s Office for Civil Rights (“OCR”) announced that it rescinded Title IX guidance, issued during the Biden administration, advising that name, image, and likeness payments were subject to Title IX’s gender equity requirements.
Franczek Insights:
1. Justice Department to Stop Defending Agency Removal – By John Swinney
As we reported, in the first weeks of his second term, President Trump removed an NLRB member, Gwynne Wilcox, NLRB General Counsel Jennifer Abruzzo, and two Democratic Commissioners at the EEOC, Jocelyn Samuels and Charlotte Burrows. Federal law provides that NLRB members can only be removed for “neglect of duty or malfeasance in office.” While the law does not specify the grounds for removal of an EEOC commissioner, there has likewise been a general understanding that commissioners can be removed before the end of their terms only for cause.
On February 12, 2025, the Acting Solicitor General, Sarah Harris, sent a letter to Illinois Senator Richard Durbin in his capacity as Senior Ranking Member of the Senate Committee on the Judiciary, informing him that the Department of Justice would no longer enforce a “cause” requirement for agency removals related to three specific agencies – the NLRB, the Federal Trade Commission, and the Consumer Product Safety Commission. Harris explained that, in the DOJ’s perspective, the “for-cause” requirement is unconstitutional. Harris stated that the President generally has “unrestricted removal power” of executive officers, and that power is only restricted where an agency does not exercise “substantial executive power.” Based on this, Harris asserted there is no restriction to the President’s ability to remove officers from the NLRB, FTC, or CPSC, which Harris argued were executive agencies.
This view runs counter to the Supreme Court’s ruling 1935 ruling in Humphrey’s Executor, in which the Supreme Court held that President Roosevelt lacked power to remove a member of the Federal Trade Commission without cause. Harris informed Durbin the DOJ intends to “urge” the Supreme Court to overturn Humphrey’s Executor, because it “prevents the President from adequately supervising principal officers in the Executive Branch who execute the laws on the President’s behalf[.]”
DC District Court Says Removal Improper
At least one federal court has had an opportunity to weigh in on the validity of these agency removals. The day after President Trump terminated Merit Systems Protection Board (“MSPB”) chairperson Cathy Harris, she filed a suit in the U.S. District Court for the District of Columbia, challenging her “purported removal” as unlawful and in direct conflict with nearly a century of precedent “that defines the standard for removal of independent agency officials.” Her MSPB term was set to end on March 1, 2028. On February 18, 2025, Judge Rudolph Contreras in the District of Columbia granted a temporary restraining order against the government and ordered the Trump administration to reinstate Harris. Judge Contreras reasoned that the appointment of the MSPB chair for a term of years with specific conditions for removal is appropriate under Humphrey’s Executor because the MSPB has limited authority, quasi-legislative functions, a need for independence, and accountability to both Congress and the President. Judge Contreras also found that Harris had shown potential for irreparable harm, reasoning that, “[w]ere the President able to displace independent agency heads from their positions for the length of litigation such as this, those officials’ independence would shatter.”
- NLRB Updates – By Hailey Golds
On February 14, 2025, NLRB Acting General Counsel Michael Cowen issued a memorandum rescinding 15 previous guidance memos issued by former NLRB General Counsel Jennifer Abruzzo. Rescinding these memos signals that the NLRB will no longer pursue these theories as priorities in the unfair labor practice charges it prosecutes, or the representation petitions it processes.
The rescinded memos cover employment contracts, including guidance that narrowed the scope of non-disparagement and confidentiality provisions of severance agreements, as well as guidance that curbed or eliminated the use of non-compete and non-solicitation restrictions and “stay-or-pay” provisions.
Cowen’s memo also rescinded guidance on specific Board decisions, including interpretations of the Board’s McLaren Macomb decision regarding severance agreements and the Board’s decision in Cemex Construction, requiring an employer to either recognize and bargain with the a union when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative or promptly file an RM petition.
Cowen’s memo also rescinded guidance outlining the position that college athletes are employees of their schools and advised that misclassifying them as mere “student-athletes” without statutory protections is an unfair labor practice under Section 8(a)(1) of the NLRA. The Biden-era guidance interpreted the NLRA to provide that college athletes are statutory employees “who have the right to act collectively to improve their terms and conditions of employment.” The now-revoked memo warned that misclassifying college athletes as “student-athletes” could violate labor laws by discouraging them from exercising their rights to organize and bargain.
Cowen’s rescission of the 2021 memo signifies a reversal of the movement by college athletes seeking statutory recognition as employees. We provided analysis of the NLRB’s rulings on NCAA Athletes and the scope of their bargaining units here, as well as the 2024 NLRB ruling finding that Dartmouth men’s basketball players are employees here.
A full list of the rescinded memos can be found here, and the text of the rescinded memos can be found here.
NLRB Remains Deadlocked
As we previously reported, President Trump fired NLRB General Counsel Jennifer Abruzzo and removed Democratic Board member Gwynne Wilcox on January 27, 2025, leaving the NLRB with only two members, Chair Marvin Kaplan, a Republican, and David Prouty, a Democrat. Because the Supreme Court ruled in 2010 that the NLRB must have at least three Board members to constitute a quorum, the NLRB cannot issue decisions, engage in rulemaking, or enforce its decisions until at least one new member is seated.
On February 1, 2025, the NLRB issued a statement saying that, while the NLRB is operating without a quorum, the Office of the General Counsel’s Field Offices will continue their normal operations of processing unfair labor practice cases and representation cases. However, while unfair labor practice complaints may still be heard before an NLRB Administrative Law Judge, without a quorum, any appeal of those decisions will be stalled without enforcement until at least one more member is confirmed to the Board.
Other Challenges to NLRB’s Legitimacy
We also previously reported that the NLRB faced multiple challenges to its authority under the NLRA, including by Amazon and SpaceX, asserting that the NLRA unconstitutionally limits the President’s authority to remove Board officials and that it violates due process because it gives the NLRB the authority to penalize companies without a jury trial. On February 3, 2025, the Board filed a letter with the U.S. Court of Appeals for the Fifth Circuit in the SpaceX case, indicating that it would not address constitutionality arguments raised in SpaceX’s brief during oral arguments. The letter said that, given the President’s actions removing General Counsel Abruzzo and Member Wilcox and the resulting lack of a quorum, the Board could not address the constitutionality of the NLRA’s restrictions upon removal of sitting NLRB members.
The above actions are part of a broader effort by the Trump administration to halt the work of “independent” federal agencies and bring those agencies within the direct control of the President. Like the NLRB, the Trump administration has left the EEOC without a quorum, firing commissioners Jocelyn Samuels and Charlotte Burrows. In recent days Trump has also fired appointees responsible for the administration of labor-management relations for federal employees, including Federal Labor Relations Authority chairperson Susan Tsui Grundmann and Merit Systems Protection Board chairperson Cathy Harris. Wilcox, Grundmann, and Harris have all sued challenging the President’s authority to remove them before their terms expire. On February 18, 2025, a federal judge in the District of Columbia ruled that the Trump administration must reinstate Harris, as discussed in more detail above.
- EEOC Drops Lawsuits On Behalf of Transgender Individuals – By Hailey Golds
In the wake of President Trump’s executive order, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government ,“ the EEOC has moved quickly to end litigation alleging discrimination against transgender individuals.
Citing President Trump’s order, which declares that the U.S. will recognize only two sexes, male and female, as determined at birth, on February 12, 2025, the EEOC began moving to dismiss complaints alleging discrimination against transgender or gender nonconforming workers. The cases include three in Illinois and one each in Alabama, New York, and California.
In the motions to dismiss these lawsuits, the EEOC cites President Trump’s executive order and the Office of Personnel Management’s January 29, 2025 memorandum, “Initial Guidance Regarding President Trump’s Executive Order Defending Women,” directing all federal employees to comply with and take actions to effectuate the Order.
The dismissal of the lawsuits follows an announcement of EEOC Acting Chair Andrea Lucas, on January 28, 2025, stating that the agency is “returning to its mission of protecting women from sexual harassment and sex-based discrimination by rolling back the Biden administration’s gender identity agenda.” After her nomination, Lucas announced that one of her priorities is “to defend the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.”
Acting Chair Lucas has been vocal in her opposition to parts of EEOC’s harassment guidance that took the enforcement position that harassing conduct under Title VII includes “denial of access to a bathroom or other sex-segregated facility consistent with [an] individual’s gender identity;” and that harassing conduct includes “repeated and intentional use of a name or pronoun inconsistent with [an] individual’s known gender identity.”
Nature of the Dismissed Suits
Each lawsuit involves allegations of discrimination and harassment based on what were protected characteristics under the previous administration. The Alabama case alleged that a hospitality company discriminated against an employee who identifies as a gay nonbinary male by firing him hours after learning of his gender identity. In New York, the EEOC alleged that a housekeeper was fired for complaining about being misgendered and called “transformer” and “it” by a supervisor. The case in California alleged that a store manager sexually harassed gender nonconforming employees with offensive physical and verbal sexual conduct.
In one of the Illinois cases, the plaintiff alleged that the owner of a fast-food franchise subjected three transgender employees to pervasive sexual harassment, including demanding to know whether one employee had a penis. The second suit filed against a pizza chain alleges that a transgender employee was outed by her manager, called a racist, homophobic slur by co-workers, and was fired when she complained. The third case alleges that a man exposed his genitals to a transgender co-worker and touched her breasts at a hog farm in southern Illinois.
When it first filed each lawsuit, the EEOC argued that transgender status falls under the protections of Title VII and employers have a duty to ensure that transgender employees are not subjected to harassing conduct. Under the new administration’s directives, the EEOC will no longer consider the conduct alleged in the complaints to be violations of individuals Title VII rights. This position conflicts with a prior ruling of the Seventh Circuit Court of Appeals, which is the federal appeals court for Illinois, Wisconsin, and Indiana. . Illinois law continues to prohibit discrimination against transgender individuals.
- Trump Administration Rescinds Biden-era College Athlete Guidance Under Title IX – By Jared Costanzo
On February 12, 2025, U.S. Department of Education’s OCR announced that it rescinded Title IX guidance, issued during the Biden administration, advising that name, image, and likeness (“NIL”) payments were subject to Title IX’s gender equity requirements.
On January 16, 2025, OCR released a fact sheet entitled Ensuring Equal Opportunity Based on Sex in School Athletic Programs in the Context of Name, Image, and Likeness (NIL) Activities. The fact sheet advised that compensation provided by a school for the use of a college athlete’s NIL constituted athletic financial assistance under Title IX. Title IX regulations require schools to provide equal athletic opportunity, regardless of sex. OCR previously viewed funding related to NIL agreements between schools and college athletes, which allow athletes the ability to profit on the use of their NIL, as a form of financial assistance for student-athletes; OCR’s position was that the Title IX regulations required schools to provide equal athletic financial assistance to student-athletes, regardless of sex, in proportion to the number of students of each sex participating in sports. This guidance came years after the National Collegiate Athletic Association’s decision to lift restrictions on college athletes’ ability to earn compensation for their NIL, which we previously wrote about here.
Acting Assistant Secretary for OCR, Craig Trainor, announced on February 12, 2025, that OCR was rescinding the Biden-era guidance, calling the prior guidance “overly burdensome, profoundly unfair, and it goes well beyond what agency guidance is intended to achieve.” Under the Trump administration, OCR is now taking the position that NIL agreements between schools and student athletes do not need to be proportionately distributed between male and female students pursuant to Title IX, and that Title IX “says nothing about how revenue-generating athletics programs should allocate compensation amount student athletes.” Thus, schools are now free to provide disproportionate financial assistance to male athletes in these types of agreements over female athletes.
We continue to track the impact of OCR’s positions relative to college athletes.
Please contact your Franczek attorney with questions, concerns, or issues related to policy implementation you may have.