The EEOC was established by Title VII of the Civil
Rights Act of 1964 to address entrenched discrimination in employment.
Afro American Newspapers/Gado/Getty Images
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In
1966, the newly-established Equal Employment Opportunity Commission
issued a rule to tackle entrenched discrimination on the job.
Every
year, companies with a hundred or more workers would turn over to the
government information about the race, ethnicity, sex and job categories
of their employees.
This EEO-1 data, as it's known, has helped
the federal agency figure out where people of color and women are not
getting hired or promoted. Over decades, the EEOC's work has led to
settlements worth billions.
Now, as part of a realignment of
civil rights enforcement under President Trump, the EEOC is seeking to
end its annual data collection while also getting rid of a 1979
regulation that allowed employers to take certain steps to address race
and gender imbalances revealed by the data.
Together, the moves would mark an about-face in the civil rights agency's efforts to fulfill its mission.
Andrea Lucas, the Trump-appointed chair of the EEOC, did not
respond to NPR's questions about the two proposals, which have been submitted to the White House for review.
But
in interviews and public remarks, Lucas has repeatedly warned that
programs or policies aimed at helping specific groups, such as Black
people or women, are unlawful under Title VII of the Civil Rights Act of
1964 if they exclude others.
"Regardless of what has happened
before, the way to stop discriminating based on race is to stop
discriminating based on race. The end. Full stop," Lucas said at the Fortune Workplace Innovation Summit
earlier this month. "I think that that's a more beautiful vision of our
country, and I think it's consistent with the text of the statute."
A roadmap for addressing discrimination
The
1979 regulation the EEOC seeks to rescind was issued with this very
dilemma in mind: Can a company remedy discrimination by giving special
consideration to those who were deprived of opportunities in the past?
The answer back then was yes. The agency gave the go-ahead for mentoring programs and even hiring targets.
"The EEOC says you can take some of these voluntary efforts, even
though they will be race- or gender-conscious," says Chai Feldblum, who
served on the commission during the Obama and first Trump
administrations. "This is the EEOC giving employers the roadmap of how
they can take race and gender into account in a positive way and not
violate the law."
The guidelines, issued in January 1979, made
clear that companies first had to document a problem, and then come up
with a reasonable and time-limited plan for how to increase the number
of minorities or women in their ranks.
Five months later, the Supreme Court embraced that roadmap. In a 5-2 decision known as Weber, the
court found that an affirmative action plan to remedy past
discrimination was lawful provided it did not "unnecessarily trammel the
interests of white employees" and that it was temporary.
In 1987, the court issued another decision, known as Johnson, extending protection to efforts aimed at helping women.
Now
known as the Weber-Johnson standard, it's still the law regardless of
what happens with the EEOC's 1979 regulation, says Feldblum. But for how
long, she's not sure.
"I think the Supreme Court is just waiting for a case that might allow them to overturn those two important cases," she says.
How data has helped root out discrimination
The
more imminent change, assuming the EEOC's proposals go forward, is the
demise of the agency's annual collection of employee demographics.
Usually, the data collection begins in late spring. So far this year,
there's been no word of it.
Since the 1960s, the EEOC has
recovered billions of dollars for workers who have suffered
discrimination on the job, and in many cases, EEO-1 data played a key
role.
"It's one of the first things that you can look at as you're
trying to learn more," says Karla Gilbride, who served as the EEOC's
general counsel during the Biden administration.
Protecting
U.S. workers from unlawful discrimination — already a hard task — could
become significantly harder if the government no longer has that data
within arm's reach, Gilbride says. Having to subpoena data would make
enforcement far more laborious and less efficient.
A lawsuit against Bass Pro Shops
Consider the lawsuit against Bass Pro Shops, first filed in 2011.
The EEOC alleged the company, formally known as Bass Pro Outdoor
World, discriminated against Black and Hispanic job applicants by not
hiring them — not just at one store, but across the country, even in
places with sizable Black and Hispanic populations.
"Store by
store by store, sort of the same idea, where you had areas that had a
significant number of Blacks and Latinos, and either zero or very few at
the stores," says David Lopez, who was the EEOC's general counsel at
the time and now leads the Civil Rights, Migration and Workplace Law
Initiative at Arizona State University.
A Bass Pro Shops Outdoor World retail store in Irvine, Calif.
Jeff Gritchen/MediaNews Group/Orange County Register via Getty Images
The EEOC saw that pattern because it had Bass Pro's demographic
data on file. Government investigators could easily compare the outdoor
gear shop to other retailers in the same counties. They could also
compare Bass Pro's workforce to the available pool of workers in the
surrounding areas.
While the data by itself could not prove discrimination, Lopez says it was a green light to agency investigators to dig further.
"Because
they had a reason to investigate, they were able to discover that there
were managerial comments that were reflective of discriminatory animus,
that they were looking for a certain type of person," says Lopez.
Someone who was white, according to the government's complaint.
Bass
Pro called the allegations "threadbare" and accused the government of
merely relying on "a handful of isolated incidents of alleged
inappropriate behavior."
EEOC investigators later bolstered
their case, identifying implicated managers and job applicants by name
and compiling a list of dozens of Bass Pro stores with a low
representation of Black and Hispanic employees.
Finally, in 2017, the company settled for $10.5 million.
Bass Pro did not admit to any wrongdoing, but agreed to appoint a
diversity director and to make good-faith efforts to recruit and hire
non-white candidates.
Lopez considered the settlement a big win, one of many he oversaw in his time at the EEOC that were built on data.
"You can have a hunch, but there's nothing like the cold, hard numbers," he says.
Agency chair says data has been misused
Early indications of the EEOC's plan to stop gathering data came a year ago.
In announcing the opening of the 2025 data collection period, Lucas posted a message warning employers of their obligations under federal civil rights law.
"You
must not use the information collected and reported in your
organization's EEO-1 Component 1 report to justify treating employees
differently based on their race, sex, or other protected
characteristic," she wrote.
In an interview with NPR earlier
this year, Lucas explained her missive. She said a number of companies
have been misusing the data — including in ways that have hurt white
people and men.
Lucas believes the only people who should know
the gender and race of a company's employees are its lawyers and human
resources staff. Instead, after the 2020 murder of George Floyd by a
white police officer, a number of companies published their demographic
data as part of public commitments to address the lack of diversity
within their ranks.
Equal Employment Opportunity Commission chair Andrea
Lucas has served on the commission since 2020, appointed by President
Trump.
Elizabeth Gillis/NPR
Subsequently, she contends, companies began making decisions about
whom to hire, promote and interview for jobs based on sex or race,
noting some even gave hiring managers financial incentives to hit
diversity targets.
That use of demographic data crosses the
line, she says. "All it has to do is motivate — in whole or in part —
your decision making, and you're into unlawful territory."
Lucas
declined to single out any company by name, citing the confidentiality
of agency investigations. But according to court documents, the EEOC has
accused Nike and The New York Times
of discrimination against white employees and job applicants. The two
companies are among many that published their demographic data along
with their diversity-related goals for several years.
A focus on data in select cases
Paradoxically, Lucas has at times talked up the importance of data.
"There
is no other way to protect victims of harassment and discrimination
unless you collect information about them," she said while speaking in
April at a conference at Harvard organized by the Brandeis Center, an independent civil rights organization.
In that instance, she was defending the EEOC's subpoena,
requiring the University of Pennsylvania to turn over employee
information that the agency doesn't routinely collect: the names,
addresses and phone numbers of Jewish employees who may have witnessed
antisemitic acts on campus.
The university has, so far, refused to comply with the subpoena, noting in court filings that it echoes terrifying periods of history for Jewish communities.
"Driving a car without a dashboard"
The
profound changes underway at the EEOC have kept David Cohen busy. The
president of the management consulting firm DCI Consulting has fielded
many calls from confused clients, wondering whether the work they've
been doing to promote equal opportunity should continue.
For
now, he's telling clients that keeping track of their employee
demographics is a smart business move, whether the government requires
it or not.
Without it, he says, a company has no way of knowing if it has a
problem — whether it's recruiting from too narrow a pool, or has a bad
manager somewhere, or is screening out qualified candidates for no good
reason.
"It's like you're driving a car without a dashboard.
You have no idea what's going [on]. Am I speeding? Am I not speeding? Is
my check-engine light on?" he says. "You have nothing."
He's been reminding clients that while priorities have shifted at the EEOC, federal civil rights laws haven't changed.
"Stay within the law, and you will be okay," he says.
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