The EEOC has lost the plot

The EEOC has lost right to claim that it's for "equal employment opportunity."

The Equal Employment Opportunity Commission exists to investigate workplace discrimination. Yet, on August 18, it signed a settlement promising never to do that again, for one group of employers, forever.

The employer is the Christian Employers Alliance. CEA sued the EEOC challenging its guidance treating gender identity discrimination as sex discrimination under Title VII. Instead of litigating it, the agency gave CEA everything it asked for.

The EEOC's Nike DEI investigation shows the difference between politics and Title VII

How employers pursue diversity, equity, and inclusion matters far more than whether they pursue it.

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.

Sometimes the merits don't matter. And that's exactly the point.

Imagine you walk into court with what appears to be a strong case. The law is on your side. The facts are on your side. Even the judge seems troubled by what the government is doing. And then you lose anyway. Not because you're wrong. Because the court says it lacks the power to decide whether you're right.

That's essentially what happened last week in FreeState Justice v. EEOC.

DOJ's attack on disparate impact gets Title VII exactly backwards

The Department of Justice just issued a legal opinion claiming that disparate impact liability is unconstitutional because it supposedly "incent[s] — and even coerce[s] — employers to make race-based decisions to avoid liability."

That's a remarkable claim.

It's also a fundamental misunderstanding of how disparate impact law actually works.

Disparate impact claims exist precisely because they target facially neutral policies. No one is alleging intentional discrimination. No one is claiming that an employer adopted a policy because of race, sex, or some other protected characteristic.

The entire point of disparate impact is that a neutral rule can nonetheless operate as an unnecessary barrier to employment opportunities.

The EEOC's new Enforcement Plan is way more politics than strategy

The EEOC has replaced its 2024-2028 Strategic Enforcement Plan with a new National Enforcement Plan for 2025-2029. The change is more than cosmetic. It reflects a significant shift in what the agency believes its mission should be.

To be clear, intentional discrimination against anyone because of race, sex, religion, national origin, age, disability, or any other protected characteristic is unlawful. Full stop. Title VII protects everyone. An employer cannot justify discrimination simply because it occurs in the name of diversity, equity, or inclusion.

But that's not really the story here.

The story is what the EEOC has chosen to prioritize.

Can you harass someone for being American?

The EEOC does not file many lawsuits.

It receives tens of thousands of discrimination charges every year but litigates only a tiny fraction of them. Which means that when the agency does decide to sue, it is usually trying to say something bigger about its enforcement priorities.

That is what makes the EEOC's recent national origin discrimination lawsuit so interesting.

The EEOC just gave employers an (inadvertent) roadmap on how to legally implement a DEI program

The EEOC thinks it just filed a blockbuster anti-DEI lawsuit against The New York Times.

What it actually filed is a pretty good roadmap for how employers can pursue diversity lawfully.

That's the irony sitting at the center of the EEOC's new case against the Times. The agency claims the newspaper illegally passed over a white male editor for a deputy real estate editor position because the company wanted to increase the number of women and people of color in leadership.

The complaint is packed with the kinds of allegations you'd expect in 2026: Slack messages about diversity trends, references to "representation goals," DEI metrics in leadership reviews, and internal discussions about maintaining progress on newsroom diversity.

But if you actually read the complaint carefully — and not just the outrage-bait headlines — something else jumps off the page.

Most of what the EEOC describes is completely lawful.

The EEOC can't repeal Bostock, but it's sure trying

The EEOC just voted 2–1 to hold that federal agencies may restrict bathrooms and other "intimate spaces" based on biological sex — and may exclude transgender employees from facilities consistent with their gender identity.

"Biology is not bigotry," says EEOC Chair Andrea Lucas.

Except according to the Supreme Court, it very much is.

Just Subpoena It.

This week, the EEOC sent a strong message to corporate America when it went to federal court to force Nike to turn over years of documents tied to allegations that its DEI programs discriminated against White employees.

The EEOC isn't suing Nike for discrimination—at least not yet. Instead, it has filed a subpoena enforcement action after Nike allegedly refused to fully comply with an investigation that reaches back to 2018. According to the agency, Nike's "DEI-related 2025 Targets" and other initiatives may have resulted in race-based decision-making in hiring, promotions, layoffs, internships, and mentoring and leadership-development programs.

Clarity beats chaos: Why rescinding the EEOC’s harassment guidance is a mistake

Today at 10 a.m., the EEOC is scheduled to vote on whether to rescind its 2024 Enforcement Guidance on Harassment in the Workplace. 

If the Commission votes "yes," it will be a terrible result for employers — not because the Guidance was perfect, but because clarity beats chaos every time.

Civil-rights enforcement isn't a culture-war trophy

The Wall Street Journal just profiled EEOC Chair Andrea Lucas under the headline "Trump's DEI Slayer Is Just Getting Started." On LinkedIn, Lucas replied, "thanks … that's right! Buckle up for more…"

It's… an odd flex.

Title VII protects everyone. Always has. White employees, men, Christians, and cisgender individuals are covered just the same as workers from traditionally marginized communities. Discrimination is discrimination, whoever the victim is.

But equal protection doesn't mean equal priority. And it doesn't mean the EEOC should treat anti-Christian bias, anti-American bias, or corporate DEI programs as the nation's most urgent civil-rights threats.

Can we still trust the EEOC to enforce our anti-discrimination laws?

The EEOC exists to combat workplace discrimination. Employers depend on it for guidance, employees depend on it for protection, and its credibility is what makes civil rights law meaningful in the workplace.

That's why the recent allegations against the agency itself are so concerning.

Marc Seawright, a transgender man and the EEOC's former Director of Information Governance and Strategy, alleges in his recently filed EEOC charge that the agency instructed him to scrub every mention of LGBTQ+ identities from its outreach materials. The agency created these materials to help employers understand their obligations under Title VII as defined by the Supreme Court in the Bostock case. According to Seawright, his expertise is now being "leveraged to perpetuate discrimination against people like me."

Title VII requires harm; not just hate

This week, America First Legal, a right-wing conservative organization founded by Stephen Miller, fired off a letter to the EEOC accusing the Los Angeles Dodgers and Guggenheim Partners of violating Title VII because of their publicly commitment to workplace diversity, equity, and inclusion.

But there's the legal twist: AFL didn't name a single person who was denied a job, demoted, fired, or otherwise harmed. Nor did it claim any injury to itself. 

Federal court guts EEOC guidance on trans rights

Federal court to SCOTUS: "We read your opinion, but we're going to pretend you didn't mean what you said."

That's essentially what just happened in Texas v. EEOC.

A federal judge struck down part of the EEOC's 2024 harassment guidance, ruling that Title VII does not protect transgender workers from being misgendered, denied access to bathrooms aligned with their gender identity, or required to dress according to their sex assigned at birth.

EEOC issues guidance on "DEI-related discrimination," but doesn't bother to define it

What is "DEI-related discrimination at work?" No one knows, including the EEOC.

Late yesterday, the EEOC released two new policy documents aimed at eliminating "unlawful DEI" in the workplace: What You Should Know About DEI-Related Discrimination at Work and What To Do If You Experience Discrimination Related to DEI at Work (the latter even available as a poster-sized PDF).

The most revealing line appears in the opening sentence of the "What You Should Know" document: 

"Diversity, Equity, and Inclusion (DEI) is a broad term that is not defined in Title VII of the Civil Rights Act of 1964."

Of course it's undefined, because DEI is not illegal.

This is not normal

THIS IS NOT NORMAL

That was the subject line of an email sent by an EEOC judge to all of her coworkers in response to an agency directive that no orders be issued in LGBTQ+ discrimination cases without first being reviewed by headquarters. The directive was in response to Trump's executive order mandating that the federal government recognize only two sexes.

The judge, Karen Ortiz, urged her colleagues to resist. "It's time for us to embody the civil rights work we were hired to do and honor the oath to the Constitution that we all took," she wrote in her email.

To her surprise, she did not receive a single response. She soon learned why. Her email had been deleted from everyone's inbox. When she followed up, calling for the EEOC's acting chair to resign, the agency cut off her ability to send emails entirely.

EEOC's policy shift to "protect American workers" is all about punishing non-Americans

If you hire non-Americans, the EEOC is coming after your business.

In a press release, Acting Chair Andrea Lucas says the following: 

"The EEOC is putting employers and other covered entities on notice: if you are part of the pipeline contributing to our immigration crisis or abusing our legal immigration system via illegal preferences against American workers, you must stop.… Many employers have policies and practices preferring illegal aliens, migrant workers, and visa holders or other legal immigrants over American workers—in direct violation of federal employment law prohibiting national origin discrimination."

Lucas's statement—while technically correct under Title VII—creates more problems than it solves. 

What the EEOC just said—and didn't say—about the current state of workplace right

"The EEOC is open for business." That's what the agency just declared in a series of frequently asked questions about the impact of Trump's Executive Orders on its operations and the laws it enforces.

The FAQs acknowledge the agency's lack of a quorum and its resulting inability to issue or rescind guidance or policy statements. They also affirm that the EEOC continues to accept and process discrimination charges, conduct investigations, issue right-to-sue letters, and litigate cases.

Trump illegally guts the EEOC of its Democratic members

Remember last week when I told you that Trump would try to dismantle all of our federal workplace discrimination laws?

Well, the first shoe has just dropped—right on the EEOC’s neck.

Late yesterday, news broke that Trump fired two Democratic EEOC Commissioners, Jocelyn Samuels and Charlotte Burrows. This move leaves only two Commissioners on the five-member EEOC: Republican Andrea Lucas (whom Trump had previously named acting chair) and Democrat Kalpana Kotagal and no quorum. Without a quorum, the EEOC is now paralyzed—unable to issue rules, provide legal guidance, or direct staff to take key enforcement actions like pursuing litigation.

Why?

"Jon, why do you post all this stuff about awful things employers do? Aren't you a management-side lawyer and advocate?"

Here's why: