EEOC issues guidance on "DEI-related discrimination," but doesn't bother to define it

What is "DEI-related discrimination at work?" No one knows, including the EEOC.

Late yesterday, the EEOC released two new policy documents aimed at eliminating "unlawful DEI" in the workplace: What You Should Know About DEI-Related Discrimination at Work and What To Do If You Experience Discrimination Related to DEI at Work (the latter even available as a poster-sized PDF).

The most revealing line appears in the opening sentence of the "What You Should Know" document: 

"Diversity, Equity, and Inclusion (DEI) is a broad term that is not defined in Title VII of the Civil Rights Act of 1964."

Of course it's undefined, because DEI is not illegal.

EEOC's policy shift to "protect American workers" is all about punishing non-Americans

If you hire non-Americans, the EEOC is coming after your business.

In a press release, Acting Chair Andrea Lucas says the following: 

"The EEOC is putting employers and other covered entities on notice: if you are part of the pipeline contributing to our immigration crisis or abusing our legal immigration system via illegal preferences against American workers, you must stop.… Many employers have policies and practices preferring illegal aliens, migrant workers, and visa holders or other legal immigrants over American workers—in direct violation of federal employment law prohibiting national origin discrimination."

Lucas's statement—while technically correct under Title VII—creates more problems than it solves. 

How to respond to the Justice Department's DEI hitlist

"The Department of Justice's Civil Rights Division will investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector." 

 

That's the key sentence from a Feb. 5, 2025, memo that Attorney General Pam Bondi sent to all DOJ employees.

What does it mean? No one really knows. What we do know is that diversity, equity, inclusion, and accessibility are top priorities for this administration. The key question is how the administration defines "illegal."

Here's what we can infer so far:

What hiring and employment look like without DEI

What does a country without DEI look like? Some people say that's what they want. No more diversity, equity, and inclusion initiatives in hiring or the workplace. Just a pure "meritocracy."

So what does that actually look like?

The 1st nominee for The Worst Employer of 2025 is … The Menstrual Marauder

"We can't hire you. You'll be absent too much due to your monthly cycle." That's the text Rahdia Green received from a hiring manager at a gym owned by Equinox Holdings after she requested to reschedule a second-round interview for a front desk job.

Green, who suffers from endometriosis, asked to delay the interview by a few days because of severe menstrual pain. Instead of accommodating her request, the gym declined to interview her further and hired a male applicant with no prior experience—despite Green's years of relevant experience working in similar roles at other gyms.

’Twas the Employment Law Night Before Christmas (2024 edition)

In what has become an annual tradition for my final post of the year, I bring you the holiday classic, 'Twas the Employment Law Night Before Christmas … tweaked for 2024.

To all of my readers, connections, and followers, new and legacy, thank you all for reading, commenting, and sharing throughout the year. Please have a happy and, most importantly, healthy and safe holiday season. I'll see everyone in 2025 with new content to kick off the new year, including a fresh batch of Worst Employer nominees.

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"Why would you want to do a man's job?"

"Why would you want to do a man's job?" That's one of the sexist questions the EEOC alleges Waste Industries—a solid waste removal, recycling, and landfill service provider—repeatedly asked female job applicants.

As a result, the company agreed to pay $3.1 million to settle the agency’s pattern-or-practice sex discrimination claim.

What does Project 2025 mean for employers? Discrimination edition

I promise this post is not political … but we do have to talk about Project 2025.

Project 2025 is an initiative organized by the Heritage Foundation aimed at preparing for a conservative presidential administration after the November election. Its goal is to promote conservative policies and ensure that the right personnel are in place to implement those policies from day one of the administration. Some call it a utopian dream, others (🙋‍♂️) an authoritarian dystopian nightmare.

Regardless of where you fall in this philosophical political debate, Project 2025 contains a lot of information of interest to employers — specifically, what changes they could expect to labor and employment laws in a second Trump administration.

Discrimination liability for "agents" extends to AI vendors, says federal court

Can an HR software vendor be held liable for the alleged discriminatory hiring decisions of its customers? According to one federal court, the answer is yes.

Derek Mobley — a Black man over the age of 40 who suffers from anxiety and depression — alleges that he applied for 80-100 positions since 2018 that use Workday as a screening tool … and has been rejected every single time despite his qualifications.

Mobley claims that Workday's artificial intelligence unlawfully favors applicants outside of protected classes through its reliance on algorithms and inputs influenced by conscious and unconscious biases.

Last week, the federal judge hearing Mobley's claim rejected Workday's efforts to dismiss the lawsuit on the basis that it was not Mobley's "employer" and thus the workplace anti-discrimination laws do not cover its actions in this context.

WIRTW #723: the 'A Portuguesa' edition

I love to travel for two primary reasons: to see things and to experience things.

On my vacation to São Miguel in the Azores Islands, I saw lots of amazing things — beautiful coastal viewpoints, crater lakes from both their rims and from inside, bubbling volcanic baths, dolphins, whales, waterfalls, cows (so many cows), and lush green landscapes.

But one experience will stick with me as the standout memory of this vacation.

Portugal was playing France in the quarterfinals of the Euros. Since we a) are a soccer-loving family; and b) were in Portugal, we couldn’t pass up the opportunity to watch the game with the locals.

We gathered in the Campo de São Francisco in the capital city of Ponta Delgada, where the local government had set up a large viewing screen. More than a thousand football crazy Azoreans joined us. It was special.

The crowd rose and fell with the highs and lows of what ended up being a 0-0 draw that went to penalties. While the match didn’t end how we wanted, the experience will live with me forever.

Here's a quick snippet of the crowd singing the Portuguese national anthem, A Portuguesa, pre-match.

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Here's what I read this week that you should read, too.

What is "implicit bias" and how to combat it in your business

Dwight Jackson, a Black man, claims that the Shinola Hotel denied him a job interview because of his race. He knows this, he says, because he reapplied for the same job at the same hotel with the same resume ... with one key difference. He changed his name to John Jebrowski. While the hotel didn't offer Jackson an interview, it did offer one to Jebrowski. That, Jackson says in his recently filed lawsuit, is race discrimination.

Inherent bias refers to the attitudes or stereotypes that unconsciously affect our understanding, actions, and decisions. These biases can silently influence hiring decisions, leading to discrimination based on characteristics such as race. Name bias is one example of how inherent biases manifest themselves.

Long live Anchor Brewing! We'll have to wait and see about its labor union. ⚓ 🍻

News broke earlier this month that Hamdi Ulukaya, the billionaire founder of Chobani yogurt, purchased the assets of Anchor Brewing after its former owner, international beer conglomerate Sapporo, had unexpectedly shuttered the brewery nearly a year ago. Anchor was one of the country's few unionized craft breweries. Ulukaya has said that he would hire back as many former employees as possible but didn't know whether the union would be part of his new operations. If he hires enough of the former employees, however, he may not have a choice on the union. That issue will depend on whether Ulukaya's Anchor Brewing is a "successor" of Sapporo's Anchor Brewing.

"Why would you want a man's job?" = big job interview no-no, says EEOC in lawsuit

"Why would you want a man's job?" Why do you want to take a job away from a man?"

Those interview questions are at the center of a lawsuit the EEOC filed against Waste Industries, a solid waste removal, recycling pickup, and landfill operation business.

WIRTW #712: the ‘OH-WOOO’ edition

I will officially have a college student in a little over four months. The "if" was never in doubt, but there "where" definitely was … at least until a couple of weeks ago.

Norah chose Ohio Wesleyan University — OWU, or, as it's affectionately called, OH-WOOO. She'll be a Battling Bishop.

"Fit" might be a four-letter word in the employment law space, as employers often use it as a pretext for discrimination. But for Norah's college choice, it was all about fit.

✅ Small liberal arts school

✅ Small class sizes
✅ Within a shortish drive from home
✅ The ability to double major in early childhood education and French
✅ Opportunities to study abroad
✅ A cute campus with off-campus amenities within walking distance

OWU checked all of these boxes. It also didn't hurt that OWU awarded her a Wesleyan Scholarship (one of its highest academic awards) and accepted her into both its Honor Program and Global Scholars Program.

To listen to Norah talk about the "why" of her college choice and the process she used to make her decision, tune in to this week's episode of The Norah and Dad Show, which you'll find on Apple Podcasts, Spotify, Amazon Music, Overcast, via your browser, and any everywhere else you get your podcasts

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Here's what I read this week that you should read, too.

WIRTW #707: the “mojo” edition

One, two, three, four
There's a plague on the planet
And they went to law school
A bunch of hornswogglers
Treat us like fools
Know who I'm talkin' about
Let me hear you shout

Destroy all lawyers

Destroy all lawyers

Bunch of evil weasel poseurs

Destroy all lawyers

Watch them push them papers

And bend them laws

Will the chump with the most money

Buy them all?

Grab them by their tails

Spit in their eyes

Well they charge you by the minute

While we get paid by the hour

What I want to know

Is how they steal all this power?

[Chorus]

They got, they got their own bar

Where they drink pints of greed

Let's spay and neuter 'em

So that they can't breed

So let us

Is at the bottom of the sea

Well they're not even evil

Yeah, they're worse than the devil

Gonna blow up the planet

Charge God double

[Chorus] 

R.I.P. Mojo Nixon. 

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Here's what I read this week that you should read, too.

Ending the “ism” of ageism

"Ageism is really one of the last acceptable 'isms' that society tolerates," says AARP senior advisor Heather Tinsley-Fix.

The numbers back her up. According to a recent AARP report, two-thirds of adults over 50 believe older workers face age discrimination in the workplace, and 90% of that group believe ageism is commonplace.

How do we best combat ageism and age discrimination in our workplaces? Here are 6 suggestions.

DEI programs continue to be a lawsuit target

Major League Baseball. NASCAR. Starbucks. McDonald’s. Morgan Stanley, American, United and Southwest Airlines. America First Legal, a conservative group led by Stephen Miller, has targeted each of these for their “illegal” practices of hiring non-Whites and females.

In its most recent letter to the EEOC, urging it to investigate American Airlines, AFL cited the following as evidence of “unlawful employment practices” —

WIRTW #689: the “134” edition

134. That's how many different available positions Costco offered to Monica Barnett over a nearly nine-month period in an effort to accommodate her knee and wrist injuries.

0. That's how many of the offered positions Monica Barnett applied for or requested placement.

1. That's the number of paragraphs it took the 9th Circuit Court of Appeals to affirm the dismissal of Barnett's failure to reasonably accommodate claim. In the Court's words:

Barnett claims Costco refused to engage in good faith, "forced" her to remain on medical leave, and required her to be "100% healed" before returning to work. These assertions are unsupported by the record. The undisputed record demonstrates that Costco held three job assessment meetings, sent Barnett 134 available positions over more than eight months, and placed Barnett in an optical-assistant position that accommodated her limitations.

Sometimes, no matter how hard you try as an employer to do right by an employee, the employee is going to sue. In those cases, all you hope is that you have your i's dotted and t's crossed, all of your contemporaneously made documentation is in order, and a judge or jury will see the case for what it is and find in your favor.

Can you hear me now?! Jury awards deaf truck driver $36M in disability discrimination lawsuit

$36 million is a number large enough to get anyone's attention. It certainly got the attention of Drivers Management, LLC and Werner Enterprises, Inc., after a federal jury awarded the EEOC that amount in a disability discrimination lawsuit it filed on behalf of Victor Robinson, a deaf truck driver, denied employment because of his disability.

5th Circuit rejects the “ultimate employment decision” test for workplace discrimination claims

"Female employees are not given full weekends off and can only receive weekdays or partial weekends off."

Is this policy legal or illegal?