Equal Employment Opportunity Commission Chair Andrea Lucas sent letters to the CEOS, General Counsels, and Board chairs of every Fortune 500 company regarding DEI programs and initiatives.
Why it matters: The letters are the latest salvo in the administration’s campaign against private sector DEI practices, with the EEOC acting as the vanguard in this effort. Expect targeted investigations and enforcement actions to follow.
The letter: Chair Lucas’ letter, by its own wording, “is not intended to be a comprehensive statement of concerns or issues that may exist in connection with the use of DEI-related policies” but instead, a “reminder of the importance of…non-discrimination obligations and this Administration’s vigilance in protecting the rights of all Americans.
- The letter does not create any new anti-DEI stances or initiatives, does not detail any company DEI practices that are unlawful, nor provide any potential examples of the same.
- In short, the letter is meant as yet another warning of the administration’s intent to use all resources to stamp out DEI practices that it believes violate Title VII (federal anti-discrimination law).
- The letter threatens to use “all statutory tools” to combat “illegal” DEI, including the administrative enforcement process, litigation, and “all types of cases in federal court.”
Employer considerations:
- An evergreen reminder: the EEOC and the administration – apart from limited guidance from the DOJ – have yet to provide concrete definitions or examples of unlawful DEI practices, nor do they have the authority to unilaterally change Title VII to declare specific practices illegal. Only Congress and/or a judicial interpretation can do so.
- Nevertheless, the EEOC and the administration are fully empowered to investigate and initiate litigation against private companies over alleged discrimination resulting from DEI practices, and are already doing so. Expect such activity to pick up considerably over the next two years, with the potential for a court decision that affirms the administration’s interpretation of unlawful DEI.
- While anti-DEI lawsuits filed by private parties such as America First Legal have largely failed to change the law thus far, it will only take one decision to do so.
- Publicly available DEI goals – especially quantitative targets and/or those tied to compensation – have proven to be bullseyes for private suits and the EEOC. If they have not already done so, companies should strong consider avoiding such public goals.
