As you know, there’s been a frenzy around DEI initiatives this year in the of wake President Trump’s executive orders regarding diversity, equity, and inclusion programs. We addressed the executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” here, and our Bradley colleagues in the Government Contracts Practice Group weighed in on DEI for government contractors. So, what’s the latest update? The EEOC is on the hunt.

While many organizations filed lawsuits challenging the DEI executive orders on various constitutional grounds, including free speech, the EEOC and other organizations (like state departments of education) are pushing forward with the war on DEI efforts. On Monday, the EEOC made clear that its crosshairs are set on DEI initiatives. In a press release, Acting Chair Andrea Lucas stated the EEOC is “prepared to root out discrimination anywhere it may rear its head” and indicated that the commission issued letters requesting information to 20 law firms concerning their DEI efforts.

More on the Letters

The letters total 210 pages, are all issued by Lucas, and focus on requesting a significant amount of information from each law firm related to their various diversity and inclusion initiatives, data regarding criteria used for internships, recruitment, and internal promotions of lawyers, and reports or plans relating to DEI initiatives. The letters report that the EEOC used only public information to evaluate statements made by the various law firms and uses those public statements (and in some cases court filings) as the basis for requesting such information. The letters claim the DEI “programs, policies, and practices may entail unlawful disparate treatment in terms, conditions, and privileges of employment, or unlawful limiting, segregating, and classifying based—in whole or in part—on race, sex, or other protected characteristics, in violation of Title VII.” Lucas also informed one organization that the “sudden, overnight removal of” the policies from the firm’s webpage give her pause.

What Should You Do?

As we said before, if you want to continue DEI efforts, do so thoughtfully, recognize the risks and, if you have not already, take the steps below:  

• Conduct a review, but first retain counsel. If you have not already, now is the time to conduct a review of your company’s DEI policies and programs. Before initiating that review, we recommend retaining legal counsel to assist with the review and to provide insight as to all the potential risks. Also, make sure the review is privileged. Make sure your company is not using quota systems based on protected characteristics.
• Resist the urge to remove or update policies without first consulting legal counsel. Understand that sudden changes in policies may give the EEOC pause, but they may also be important to comply with the executive orders. Do not rush into a change without thinking it through.
• Continue training. Train your supervisors and other decision-makers on best practices, so they know employment decisions should never be motivated by race, sex, or any other protected characteristic. Hiring based on merit is always the best practice.
• Be inclusive. Identify ways to help all of your workforce feel included during these unpredictable and everchanging times.  

Finally, stay tuned to our blog as we will keep you updated with the latest news in this area.

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