Employer Alert: A New EEOC DEI Investigation Sparks Debate Among Past and Present Leaders

Diversity, Equity, and Inclusion (DEI) programs have become a fixture in many modern workplaces, designed to promote a more inclusive environment. But recent federal scrutiny has raised new concerns for employers. A recent Executive Order directed the Chair of the U.S. Equal Employment Opportunity Commission (EEOC) to review large law firms for compliance with Title VII of the Civil Rights Act of 1964,  igniting discussion over whether the EEOC is overstepping its authority in investigating DEI programs.

This post examines the differing perspectives on this issue: the reasons for Acting Chair Andrea Lucas’s increased scrutiny and the opposition raised by former EEOC officials who warn of procedural overreach.

The EEOC’s Position

On Monday, EEOC Acting Chair Andrea Lucas announced that the EEOC had requested extensive information from 20 law firms about their DEI initiatives. These letters note that based on public statements, court filings, or both, the EEOC has concerns that some firms’ employment practices, including those labeled or framed as DEI, may entail unfair treatment in hiring, promotions, or workplace policies, or unlawful limiting, segregating, and classifying based on race, sex, or other protected characteristics, in violation of Title VII. And since the EEOC is authorized to investigate and litigate against private companies and other private employers for violations of Title VII and other federal laws prohibiting employment discrimination, the letters represent that first step.

While the EEOC has historically conducted investigations based on filed complaints or Commissioner charges, Lucas’s approach appears to signal a broader enforcement effort—furthering a shift in how the EEOC views DEI efforts under federal law. The EEOC touts its authority to conduct directed investigations, even without a formal charge of discrimination, when reviewing systemic discrimination issues—a power that Lucas may be leveraging.

Former EEOC Officials’ Position

In response to Lucas’s letters, several former EEOC officials—including past Chairs, Commissioners, and General Counsels—pushed back, arguing that her actions exceed the EEOC’s legal authority. Their primary concerns include:

• Lack of a Formal Charge: Title VII does not grant the EEOC authority to request employer information absent a filed charge or Commissioner charge signed under penalty of perjury. The officials argue that Lucas’s letters imply a duty to respond without any legal basis.
• Violation of Confidentiality Protections: Title VII explicitly prohibits the EEOC from publicly disclosing the existence or target of an investigation before a finding of discrimination. The public nature of these letters, they argue, could intimidate employers and violate procedural norms.
• Paperwork Reduction Act (PRA) Concerns: Federal agencies must follow specific protocols before collecting large-scale data from the public. The former officials argue that these letters circumvent those requirements, potentially imposing undue burdens on employers.
• Undermining DEI Support: The EEOC’s longstanding position has been that lawful DEI programs typically do not make employment decisions because of race or sex but instead aim to remove barriers and expand opportunities. They caution that sudden, unilateral enforcement actions could create confusion and discourage employers from engaging in lawful diversity initiatives.

The former officials urged Lucas to withdraw the letters to maintain the EEOC’s credibility and ensure fair enforcement of Title VII.

A Final Takeaway for Employers, Generally

The debate over the EEOC’s authority to investigate DEI programs without a formal charge underscores the complex legal landscape employers must navigate. Lucas’s approach suggests a more aggressive stance toward scrutinizing DEI initiatives, while former EEOC leaders argue that such actions risk exceeding the agency’s legal mandate and undermining confidentiality protections.

For the broader employer community, this debate serves as a reminder: DEI programs remain permissible under Title VII, but they must be structured carefully to avoid employment decisions based on protected characteristics. Employers should be prepared for potential EEOC inquiries by proactively reviewing their DEI policies and programs to ensure they focus on inclusion/merit without making hiring, promotion, or other workplace decisions based on race, sex, or other protected characteristics in violation of Title VII.