The Trump administration’s 180 from diversity, equity, and inclusion initiatives seems to have leaked into the private sector as well. One reason: a change of emphasis in the kinds of cases the Equal Employment Opportunity Commission has been tasked with going after. With a change in leadership and policy, what can we expect to see from the commission? For some insight, the Federal Drive with Tom Temin spoke with Carol Warner, editor of the publication HRMorning.
Interview transcript:
Carol Warner Starting with the changes, the first thing, President Trump came in and he issued a bunch of executive orders on day one. Keeping with the [Equal Employment Opportunity Commission], those orders are mostly related to DEI and gender ideology. With the EEOC, President Trump let the General Counsel Carla Gilbride go, which was totally expected. What wasn’t as expected is that two commissioners who had time left on their terms were also let go. So that was very unexpected and it’s actually never happened before. So there might be some legal challenges there. That’s definitely something to keep an eye on. Since the report came out, Andrea Lucas has been named the acting chair of the EEOC. And that’s expected because she has been a a vocal critic of DEI initiatives. So it would make sense that she would lead the EEOC in a way that aligns with President Trump’s executive orders. Shortly after she was named acting chair, she released a statement and she said she’s looking forward to restoring the even-handed enforcement of employment law, civil rights laws for all Americans. And she outlined some priorities. The very first thing that she listed was rooting out unlawful DEI-motivated race and sex discrimination. She also mentioned protecting Americans from anti-American national origin discrimination. And then she also mentioned some plans to maybe roll back some transgender rights. So this is a very different shift to what we see in the report and what the previous administration did.
Eric White And this is all on the back of EEOC just releasing its, I believe it’s an annual report of all the work that it had been doing. Was there a lot in the DEI field that it was taking an initiative with? Obviously it’s its bread and butter when it comes to workplace discrimination, but what kinds of activities exactly is Ms. Lucas talking about when she says “even-handedness?” Had there been a lot of DEI-related enforcement from EEOC over the past four years?
Carol Warner So here’s the thing. The report that I looked at focused on fiscal year 2024, so I’m going to limit it to that scope. The main focus for the EEOC’s efforts in fiscal year 2024 was handling discrimination complaints. Discrimination was 70%, I think, or nearly 60% of the lawsuits, and that’s Title VII. But of those discrimination complaints, sex discrimination was the top one and that appeared in nearly half the lawsuits. Other claims were disability discrimination and then retaliation claims. Those were the three highest priorities on the list of the previous administration’s plans for the EEOC. That’s what the previous administration focused on. Now, with the shift under new leadership with Andrea Lucas, what she’s saying is that she is planning to focus on more of the, quote, reverse discrimination claims, the things that she’s pointing out as her priorities are rooting out what she’s calling unlawful DEI. And that would be in line with promoting someone just because they were a woman or a person of color or maybe not an American-born citizen. And that’s what she’s saying that she wants to focus on. The EEOC focus has always been to protect American workers from employment discrimination. So I don’t think that anything has been going on that is allowing illegal DEI practices. It’s just that this administration is focusing on moving from DEI to MEI, which is merit, excellence and intelligence. So they want to move away from DEI and over into merit-based employment decisions.
Eric White What’s harder to enforce, right? I mean, because you can kind of pinpoint discrimination on terms of sex and race by a pattern of behaviors. If somebody doesn’t get a promotion and they say, look at all this experience I have, is that going to be enough to bring in an actual case forward? I mean, what is the difference, I guess, in in enforcing one compared to the other?
Carol Warner Well, I think in light of President Trump and Andrea Lucas’s stance on DEI, I think we are likely to see a lot more discrimination claims focused on reverse discrimination or cases to root out illegal DEI. I think that in an employment situation there’s always this idea of you have to make judgment calls. You have to look at a person’s abilities, their history, their track record. And then it’s important, I think, for employers to document the choices that they make, why one person got promoted over another or why one person was hired over another. It’s about making good decisions, documenting those decisions and and explaining it every step of the way so that you have a paper trail so that if somebody comes back and asks you, you’re not just [saying], “it was my gut decision.” You can look at the documentation that you’ve created and say, “well, I think that this person was the better choice because they have ten years experience in in radio broadcasting, whereas the other person only had four.” You need that documentation to defend business decisions, whether it’s an investigation by the EEOC or whether it goes to court.
Eric White You guessed that I only have ten years of radio broadcasting? I’ve got a little bit more. I’ve got a little bit more. All right. And so I wanted to just pick your brain on the role EEOC has played, now and over the last few years, of actually implementing maybe not a policy from the White House, but what what an administration would like to see from the business community. Obviously, President Trump and President Biden have very divergent views. Has the EEOC ever been utilized, I guess, in forcing the hand of the business community through enforcement mechanisms rather than enacting a regulation that says you must do this, this and this? Has the choice of who leads the EEOC — I don’t want to use the term weaponization or anything like that or any of these crazy words that heighten things — but just utilizing it in a way to try and get what they want from the business community.
Carol Warner I have not seen previous administrations use an executive order to explicitly tell the EEOC to go after something like DEI in the private sector. However, I recognize that Presidents appoint acting chairs and leadership in agencies, and there is usually a partnership of them working together. I think that President Trump came into the White House ready to go, and he might have been a little bit more forceful than some prior administrations. So I don’t think we’re comparing apples and oranges here. We’re in a situation where there’s a lot of unprecedented things going on. So it’s really just a wait and see approach.
Eric White Yeah. Not to mention the removal of any dissenters really, which is going against what the EEOC mantra has been, which is equal representation from every nook and cranny and corner of the universe. Is it going to be different for you, especially somebody who covers it, seeing a more, I guess, unified approach from the EEOC rather than having all these dissenting opinions from within the agency itself?
Carol Warner Yeah. When we are we’re trying to sort things out, one of the things that that I like to do, one of the things that I find helpful is to try to block out the noise, because if you take a broad view, it can get overwhelming. So I like to narrow my perspective and look at what what we do know and what we do know right now is that Andrea Lucas is in charge at the EEOC. She has outlined specific things that she wants to do, which includes focusing on the DEI initiatives. A couple of other things that she has announced: The EEOC has already taken some steps to comply with President Trump’s gender ideology executive order. For example, the agency has removed the pronouns option for staffers. So like on Outlook or Teams or whatever, you have your name and you choose pronouns and, well, that’s gone. The agency has removed the gender marker “X” for people who want to file a discrimination charge with the EEOC. Similarly, the Mx. prefix, rather than Mr. or Ms. or Mrs., has been removed. These are things that we know the EEOC has already done. The EEOC has scrubbed its website. It’s starting to put banners up for things that don’t align with some of the President’s executive orders. It’s letting the public know, “hey, this is under review. We’re in the process of looking at these things. So it might change.” Andrea Lucas also announced that they are reviewing the EEOC’s “Know your rights” poster, so we might see an updated poster. I don’t know what changes are going to be made, but these are things that employers need to know. By looking at things that have been done so far, that gives us a starting point. That gives us a plan to, okay, how are we going to learn the rules and what this new administration and this new leadership from the EEOC expects from from HR professionals, from small business owners, from employers, and how can we comply with those requirements?
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