EEOC Scrutiny of DEI Programs: What Companies Need to Know
The EEOC’s Policy and Initiatives
Over the past 15 months of the second Trump Administration, the U.S. Equal Employment Opportunity Commission (“EEOC”), under the leadership of Chair Andrea Lucas, has pursued aggressive enforcement efforts aimed at advancing the Administration’s civil rights priorities and implementing the directives of Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, and, more recently, Executive Order 14398, Addressing DEI Discrimination by Federal Contractors. Both of those Executive Orders reflect the Administration’s stated view that diversity, equity, and inclusion (“DEI”) programs promote discrimination instead of remedying it.
Last week the EEOC submitted a proposal to the Office of Management and Budget’s Office of Information and Regulatory Affairs, seeking rescission of the agency’s longstanding 1979 rule titled “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964.” The rule provides guidance to employers on implementing affirmative action programs to correct the effects of prior discriminatory practices, as well as a good-faith-reliance defense for employers who implement affirmative action plans in good faith and in conformity with the rule’s guidelines. If finalized, the proposal would eliminate the availability of this good-faith defense and expose private-sector employers to EEOC enforcement actions targeting affirmative action as discrimination.