So much is happening every day that it can feel impossible to keep up. Today’s focus is the Equal Employment Opportunity Commission (EEOC): what the agency is signaling, what the law still allows, where the danger is, and where the hope lives.
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What the EEOC is (and why this matters)
The EEOC is the federal agency charged with investigating and upholding anti-discrimination laws in the workplace. It has long been the first stop for people experiencing discrimination based on race, sex, age, disability, pregnancy, religion, sexual orientation, and gender identity.
What is changing right now
Until SCOTUS (Supreme Court) weighs in, we can expect the EEOC to… retreat from enforcing key anti-discrimination protections, particularly disparate impact. Disparate impact claims do not require proof of intentional bias. They focus on policies or practices that produce discriminatory results. The law still recognizes disparate impact, but the agency is signaling it will stop prioritizing and, in many instances, stop investigating these cases. People are already receiving dismissals.
Consider AI screening tools. If those tools create biased outcomes that disproportionately exclude Black candidates, women, older workers, people with disabilities, or LGBTQIA people, that is classic disparate impact. Yet many such claims may not get traction inside the EEOC under this regime.
This is not theoretical. It is a return to a Jim Crow 2.0 workplace landscape where the burden on workers increases while bad actors face less federal scrutiny. Black people, other people of color, women, LGBTQIA folks, older workers, and pregnant workers are all at risk. If you have a racist boss or you work inside an organization hostile to equity, your climb just got steeper.
The commission’s new tilt
A new commissioner has shifted the balance to fully align with the administration’s anti-DEI posture. Expect moves like:
Attempts to end or regulate private-sector DEI programs through guidance or rulemaking. That fight is not over, and it is not necessarily legal.
Efforts to rescind the Pregnant Workers Fairness Act rule, making it harder for pregnant workers to secure reasonable accommodations.
Expansion of religion-based exemptions in a way that privileges one set of religious claims while ignoring others.
Restrictive approaches to gender identity, including bathroom access and policies targeting trans workers.
An aggressive push to frame equity measures as “reverse discrimination,” inviting white plaintiffs to attack fair hiring or promotion decisions.
Also expect a broad reduction in outreach and enforcement, paired with rhetoric that dismisses discrimination as invented or deserved. That is the point.
What still stands: the law and your timelines
Federal law still prohibits discrimination, including via disparate impact. Courts are obligated to enforce statutes enacted by Congress even if the EEOC will not help you. If you receive a Right-to-Sue notice, you typically have 90 days to file in court. Talk to a local employment lawyer immediately.
Remember the states. Many states have strong anti-discrimination laws and their own enforcement agencies. You can often file in state court and pursue state remedies even when the federal agency is hostile. If you live in a state openly hostile to your rights, that is a policy choice with real human costs. Communities have historically responded by helping each other relocate to safer places. It may be time to talk seriously about in-country relocation assistance for people fleeing states that strip rights from pregnant people, LGBTQIA people, people with disabilities, and communities of color.
A narrow but meaningful legal path for employers
There is real hope on the employer side, and it comes from recent constitutional arguments and business realities.
A federal district court in Florida permanently blocked the workplace provisions of the state’s “Stop WOKE Act,” holding that the government cannot dictate the content of employers’ voluntary employee trainings. That is a First Amendment speech restriction problem for the state.
Citizens United (2010) recognized robust corporate speech rights. If companies can spend to express political views, they can also argue that DEI is core corporate speech: an expression of values, brand, and strategy. Government attempts to ban or chill DEI trainings and fair-chance hiring policies can be framed as unconstitutional viewpoint discrimination and an overreach into corporate governance.
There is also a fiduciary and competitiveness argument. Every company segments markets. You cannot sell effectively to major demographics without representation and insight. Banning DEI undermines profitability, investor value, risk management, and global operations.
These strands create a strong litigation posture if the right cases, with clean facts, are brought. The Supreme Court will have the final word. Facts will matter. Records will matter. Plaintiff selection will matter. The argument should integrate First Amendment corporate speech, the Florida ruling on training content, profitability, and market segmentation, and fiduciary duty to shareholders.
What companies should do now
Prepare, do not wait. Passive compliance invites attack.
Tighten job descriptions. Short, clear, skills-based. Emphasize combinations of equivalent experience and competencies. Reduce arbitrary degree inflation. This both widens your qualified pool and reduces “reverse discrimination” posture attacks.
Harden processes. Standardize interviews, structured scoring, consistent documentation, and adverse-impact monitoring for every hiring stage, including AI-assisted steps. Keep privilege over validation studies where appropriate.
Audit your AI. Demand vendor transparency. Conduct bias and adverse-impact testing at ingestion and output. Ensure human-in-the-loop decision authority with appeal paths.
Reframe DEI as core business speech and risk management. Update board minutes, charters, 10-K risk factors, and policies to reflect how inclusion ties to strategy, markets, innovation, safety, and legal risk. This builds the record for First Amendment and fiduciary defenses.
Coordinate with peers. Trade associations and cross-industry consortia can share model policies, litigation strategies, and amicus approaches. Do not leave test cases to the least prepared defendant.
Plan the forum fight. State law claims in friendly jurisdictions, coupled with federal constitutional claims where appropriate. Work with counsel deeply familiar with both employment law and First Amendment doctrine.
What workers should do now
Document everything. Dates, names, emails, texts, changed metrics, moving goalposts, AI screening anomalies.
File timely. If the EEOC issues a Right-to-Sue or refuses to investigate, you likely have 90 days to file in court. Do not miss it.
Use state avenues. File with your state agency where protections are stronger or enforcement is real.
Find counsel early. Many employment lawyers will screen your case quickly and help preserve claims.
Organize. Mutual-aid and community support can close the gap when formal enforcement retreats.
Why this fight is bigger than HR
We are living through the most dangerous rollback since the end of Reconstruction. The call is coming from inside the house. There are people openly embracing Nazi rhetoric while sitting inside government structures. Black people stand to lose ground at a pace and scale not seen in generations if we do not respond. Companies must understand what remains possible and build records that win. Workers must understand their timelines and state options. Consumers must speak with attention, pressure, and dollars.
From Qualified: How Competency Checking and Race Collide at Work (HarperCollins, 2025)
Book excerpt
Getting Creative
Personally, I see clear similarities between advancing DEI and the concept of “new market expansion.” Expanding DEI efforts mirror the entering of new foreign markets because of systemic racism and sexism. Black consumers, Hispanic consumers, and women are still developing markets that for years were either excluded, artificially depressed, mocked as “racial mascots,” or treated as secondarily necessary. Just as businesses wouldn’t shy away from a promising foreign market due to initial challenges, they shouldn’t retreat from diversifying their workforce and consumer base out of fear of pushback. The long-term rewards (like a new consumer base, new product ideas and creation, and more profitability) outweigh the short-term hurdles. The idea that someone would say that you cannot and should not try to understand and recruit from a diverse workforce or that you should not understand how to market to and sell to a diverse consumer base is the path of obsoletion. This means that those companies that can afford it may need to take the lead in pressing court matters regarding their rights as institutions, the restriction of free speech, and anticompetitive interference.
And here’s how they might do that—by taking a page from the playbook of those who, often using fake plaintiffs, manipulate the intent of civil rights legislation to promote a supposedly “color-blind” society that favors white people, use the existing law in a new way. One avenue might be Citizens United. The Supreme Court decision in Citizens United v. Federal Election Commission (2010) fundamentally changed the landscape of campaign finance law by ruling that corporate funding of independent political broadcasts in candidate elections cannot be limited under the First Amendment. This decision has broad implications for corporate speech and could potentially be used by companies to push back against anti-DEI efforts. Here’s how companies might leverage this decision and the First Amendment to support DEI initiatives:
• Corporate Free Speech Rights: DEI initiatives are a form of corporate speech that reflect values and business interests. Government action that seeks to limit or ban DEI can be challenged as an infringement on corporate free speech.
• Expressing Corporate Values: Promoting DEI is an expression of organizational philosophy and identity.
• Opposition to Government Overreach: Anti-DEI regulations are an overreach that attempts to control which messages companies can support.
• Economic Interests as Speech: DEI strengthens innovation, employee satisfaction, customer relations, and profitability. Restrictions on DEI restrict economic interests.
• Political Advocacy and Contributions: Supporting DEI, including lobbying against anti-DEI legislation, is political speech protected under Citizens United.
—Excerpted from Qualified: How Competency Checking and Race Collide at Work (HarperCollins, 2025), pp. 199–201.
Bottom line
The EEOC may retreat. The law still stands. Courts and states will still hear claims.
Employers have a winning constitutional and business case to defend DEI if they prepare now.
Workers must document, file on time, and use state paths.
Consumers have a role. Markets move when people do.
I wrote Qualified to prepare for exactly this moment. If your company, law firm, or board needs a practical roadmap, I am available to brief your leadership, train your teams, and help you build the record that survives scrutiny and wins in court.
Resources:
https://thehill.com/opinion/civil-rights/5560748-eeoc-rejects-disparate-impact-claims/
https://www.fisherphillips.com/en/news-insights/senate-approves-third-eeoc-commissioner-and-gives-agency-power-to-resume-action.html
https://ogletree.com/insights-resources/blog-posts/federal-court-permanently-blocks-florida-restrictions-on-workplace-diversity-training/
https://www.brennancenter.org/our-work/research-reports/citizens-united-explained
Qualified: How Competency Checking and Race Collide at Work, https://www.amazon.com/Qualified-Competency-Checking-Race-Collide/dp/0063354063/ref=tmm_hrd_swatch_0
