EEOC Publishes National Enforcement Plan and Continues Aggressive Enforcement
On June 4th, the Equal Employment Opportunity Commission (the “EEOC”) released a new National Enforcement Plan (“NEP”) rescinding the former plan adopted under the Biden Administration. An EEOC NEP identifies priorities the agency is focusing on and therefore provides helpful insight for employers into risks and pitfalls they should take extra care to avoid.
While there are a variety of priorities, a few are especially worth highlighting:
Focusing on cases involving repeated and overt discrimination which, on account of a protected characteristic (such as sex, race, age, etc.), exclude or discourage certain individuals from applying, or encourage certain individuals to apply;
Closely critiquing programs labeled as DEI or using “similar euphemisms”, especially those adopted by large corporations, universities, and “elite institutions,” including programs ranging from specified on-the-job training to mentorship to employer-sponsored groups, and particularly focusing on quotas or “aspirational goals,” which the EEOC views as proxies for quotas, and incentives to consider race/sex in employment (e.g., diverse slate policies, diversity statement requirements for candidates, sharing employee race/sex data with non-HR personnel);
Prioritizing disparate treatment over disparate impact claims, noting that the EEOC “will not commence, develop or continue to pursue litigation advancing disparate impact claims”;
Focusing on “women’s rights to single-sex spaces at work and workers’ rights to express the binary nature of sex”;
Protecting American workers from specifically anti-American national origin discrimination; and
Defending workers’ religious liberties and “rights to receive religious accommodations”.
The NEP’s identification of these target areas aligns with previously stated priorities from the Trump administration via the EEOC, and also from the DOJ and executive orders. One major development involving both the DOJ and the EEOC came last month when the DOJ issued an opinion letter opining that the EEOC’s disparate-impact guidelines are unconstitutional. Disparate impact theories of discrimination are used when a seemingly neutral employer action causes disproportionate negative harm to a group, regardless of the employer’s intent. Disparate impact liability is contemplated by Title VII of the 1964 Civil Rights Act but, as noted above, the current EEOC has confirmed it will not commence or pursue litigation advancing such claims in light of the DOJ opinion letter.
The pivot on disparate impact is just one example of many that the EEOC is prepared to act on its stated priorities; the agency has pursued enforcement actions aligned with the NEP objectives in recent months. Some recent, illustrative examples include:
In February, the EEOC charged Coca-Cola with a Title VII violation in connection with a female-only employer-sponsored event, which included team-building exercises and speakers. The EEOC explained that because male employees could not attend the event, for which women attended and were paid without using vacation days, Coca-Cola made an employment decision motivated by sex. Coca-Cola has moved to dismiss the EEOC’s complaint.
In March, the EEOC revealed an investigation into Nike, subpoenaing the company to produce information regarding potential discrimination against white workers in connection with its DEI policies and 2025 targets. The subpoena action followed the EEOC privately attempting to obtain voluntary disclosures. Some of the requests in the subpoena sought information from as far back as 2018 and included criteria for selecting employees for layoffs, information regarding tracking and use of employee race and ethnicity data, and information about purportedly race-restricted mentoring and other career development opportunities.
In March, the EEOC found that Planned Parenthood violated Title VII in connection with race-segregated “affinity caucuses”, DEI-related trainings which included statements targeting white employees, and time off policies which allegedly were limited to only black employees. Planned Parenthood entered into a $500,000 settlement to end the investigation.
In May, the EEOC reached an agreement with an Oklahoma manufacturer to pay $4.25 million to workers who were denied accommodations to a mandatory COVID-19 vaccine policy despite religious and disability accommodation requests, which the EEOC claimed were simply ignored. In addition to the settlement amount, the company also must train managers on accommodation requests, inform employees of rights to reasonable accommodations on religious grounds, and even report to the EEOC when handling future requests.
In May, the EEOC sued the New York Times for alleged DEI-related race and sex discrimination. The lawsuit alleges that the New York Times chose not to promote a white male employee because of his race and/or sex, despite him being allegedly well-qualified. As part of its lawsuit, the EEOC specifically identified policies the agency characterized as DEI which aimed to increase non-white and female representation among the paper’s leadership. The New York Times has called the allegations baseless and has raised counterclaims, including a counterclaim under the First Amendment that the litigation is retaliatory due to its reporting relating to President Trump.
These are just a few examples, but they showcase that the EEOC is targeting everything from hiring practices (such as in the New York Times action) to trainings (such as at Planned Parenthood) to networking events (such as at Coca Cola). These cases also demonstrate that the EEOC’s stated goals to prioritize targeting DEI policies and protect religious liberties are being actively pursued.
In light of these recent developments, employers should consider conducting a wide review of their equal employment policies, from hiring practices to written policies to day-to-day employer-sponsored activities. This is especially true for employers which have historically prioritized diversity initiatives since those policies are being intensely scrutinized by the administration. Employers with questions about equal employment practices or recent EEOC developments should contact Jack Culhane at jculhane@fglawllc.com, Kristina Grimshaw at kgrimshaw@fglawllc.com, or any attorney at the firm.
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