The EEOC's recent pursuit of Nike illustrates the point. The agency says that Nike's DEI program is illegal. That's not, however, what Title VII says.
According to a New York Times investigation, EEOC Chair Andrea Lucas has spent more than two years building a case that Nike's diversity initiatives amount to unlawful discrimination against white employees. The investigation didn't begin with an employee complaint. It began with a commissioner charge, followed by an expansive probe into Nike's hiring goals, internships, mentorship programs, leadership development, executive compensation, and layoffs.
The current administration's message is clear: DEI equals discrimination. Except that's not what Title VII says.
Under longstanding Title VII principles—not the EEOC's current enforcement position—a lawful DEI program isn't one that ignores race or sex. It's one that never uses race or sex to make employment decisions.
There is nothing illegal about wanting a more diverse workforce. There is nothing illegal about expanding recruiting efforts, offering mentorships, sponsoring affinity groups, measuring workforce demographics, or setting aspirational diversity goals.
Where employers get into trouble is when race or sex becomes the reason someone is hired, promoted, selected for a program, or laid off.
Ironically, the Nike investigation also provides employers with a useful compliance roadmap. In early 2025, Nike and the EEOC reached a settlement agreement under which Nike affirmed that its training and development opportunities would remain open to all employees and that it would encourage everyone to participate.
Then Trump took office. Because the EEOC had never countersigned the agreement, it withdrew the settlement and instead launched a sweeping investigation into nearly a decade of Nike's hiring, compensation, training, and layoff decisions.
Yet the proposed settlement reflects exactly what employment lawyers (including me) have been advising clients for years. If you're offering leadership development, mentorships, internships, or networking opportunities, make them available to everyone. Use objective selection criteria. Focus on expanding opportunity, not limiting it. Build inclusive programs, not exclusive ones.
The Supreme Court may eventually narrow what employers can do in the DEI space. The current administration clearly hopes so. The EEOC's enforcement priorities expressly seek cases that could reshape the law. But we're not there yet, and we may never get there.
Employers shouldn't treat every DEI initiative as radioactive. They should treat DEI like every other employment practice: design it carefully, administer it fairly, and make sure it complies with Title VII.
Because under Title VII, pursuing diversity isn't unlawful. Making employment decisions based on protected characteristics is.