The EEOC’s acting chief, Andrea Lucas, is shifting the agency’s focus towards President Trump’s stance against diversity, equity, and inclusion (DEI) programs in both public and private sectors. Lucas’s recent actions have garnered support from the Trump administration, particularly following Trump’s contentious executive orders targeting such initiatives within federal agencies. These orders also threaten financial penalties and investigations for federal contractors involved in alleged “illegal” diversity-related practices. Lucas, who has a history of criticizing DEI practices she sees as discriminatory, has been nominated for another five-year term as commissioner.
However, this shift has drawn criticism from former Democratic EEOC officials and civil rights groups, who accuse Lucas of exceeding her authority. They caution employers to be cautious of her guidance and even suggest they may want to disregard it. Recent controversy arises from two EEOC documents co-issued with the Department of Justice designed to clarify potential “DEI-related Discrimination at Work” and outline how employees can file related complaints. These documents caution that certain programs, like training and fellowships, could conflict with Title VII of the Civil Rights Act, which bans employment discrimination based on race and gender.
In parallel, Lucas has reached out to 20 leading law firms, requesting information on diversity fellowships and programs that might indicate discriminatory practices. In a counter-move, 10 former Democratic commissioners and legal experts penned a letter, questioning the legality of Lucas’s DEI documents and condemning her actions as misrepresentative of typical legal risks. This letter advises employers to continue adhering to EEOC-endorsed discrimination prevention practices. In previous correspondence, seven ex-EEOC officials criticized Lucas for potentially overreaching by requesting this information without a formal investigation. Leading civil rights groups joined in, pressing law firms to ignore these demands, citing no legal requirement to respond.
“This is not standard EEOC procedure. Individual commissioners don’t have the power to unilaterally demand private details from employers,” explained Noreen Farrell of Equal Rights Advocates. The sentiment was echoed by Jenny Yang, a former EEOC commissioner, who noted that typically, EEOC probes are complaint-driven. While a commissioner might occasionally launch their own investigation, it would need to be preceded by credible evidence under oath. Meanwhile, law firms already feel the heat from separate Trump initiatives penalizing them for supporting his adversaries or implementing DEI efforts, like Skadden, Arps, Slate, Meagher & Flom, which prompted them to reassess their diversity strategy.
Affected law firms have not commented on their response plan to Lucas’ requests, and the EEOC hasn’t elucidated whether these firms are legally bound to respond or face penalties. Despite this, Lucas insists that her actions aren’t a reinterpretation of civil rights laws but rather a call to address DEI practices that verge on discrimination. According to Lucas, after the 2020 racial justice movements, dubious company practices have proliferated under the guise of DEI.
Many employers may heed her warnings as the EEOC positions itself as an ally to employees claiming discrimination from DEI initiatives. Anuradha Hebbar of CEO Action for Inclusion & Diversity emphasizes that the EEOC’s guidance underscores the risks of fellowships limited to women or specific racial groups. Stefan Padfield from the National Center for Public Policy Research commends the EEOC’s redirection, anticipating a rise in DEI-based complaints.
While Lucas acknowledges limits in her unilateral power to amend agency guidelines conflicting with Trump’s executive orders, and despite the EEOC’s shift to abandon suits alleging discrimination against transgender individuals aligned with Trump’s gender recognition policy, further changes in the EEOC’s enforcement agenda demand a majority vote from its commissioners. In a bold move, Trump recently dismissed two EEOC Democratic commissioners, disrupting a long-standing bipartisan tradition.
Accusing Lucas of highlighting isolated discrimination cases to create a false perception of widespread DEI program risks, former EEOC officials implore lawmakers not to intimidate or dissuade employers genuinely advancing inclusion goals. “Federal civil rights bodies should not undermine or intimidate employers striving for these objectives,” their letter argued.