The framework – issued on June 4 and officially known as the EEOC’s “National Enforcement Plan” – prioritizes the investigation of “DEI-related discrimination.”
“The EEOC has specifically identified hiring, promotion, compensation, training, leadership development, and workplace initiatives as areas warranting its increased attention,” states the analysis, put out by Nixon Peabody, a global law firm whose areas of practice include government and higher education.
“As a result, institutions should anticipate heightened scrutiny of their programs and practices, including diversity hiring initiatives, employee resource groups, fellowship programs, diversity statements, and performance metrics tied to diversity objectives,” the analysis states. The analysis further advises institutions to review their programs, practices and initiatives to “ensure that they are open to all, including in promotional materials, website content, and in practice.”
Originally created by the Civil Rights Act of 1964 to combat workplace discrimination, the EEOC is being recalibrated by the Trump administration to prioritize the investigation of discrimination that it believes is taking place under the guise of DEI.
The EEOC’s enforcement plan prioritizes cases that involve “repeated or overt discrimination,” which it says can include “facially discriminatory policies, practices and programs.” According to the EEOC, “facially discriminatory” practices can include job advertisements that encourage certain “diverse candidates” to apply. It can also include fellowship programs meant to diversify professions or areas of study that have historically lacked diversity.
The PhD Project – a program that historically helped Black and Latino students pursue business degrees – stands as one of the clearest recent examples of a program targeted by the Trump administration for running afoul of the administration’s vision of what it means to be non-discriminatory. Subsequently, many colleges and universities cut ties with The PhD Project, which now uses broader language, such as “enriching education for all,” to describe what it does.
The Nixon Peabody analysis states that institutions should “be mindful that the compliance landscape is not shaped by federal action alone.”
“A number of states have enacted their own restrictions on DEI-related programs or practices within public higher education,” the analysis states. “In contrast, others have adopted protections for diversity-related initiatives or academic freedom.”
It says the interplay between federal and state requirements will “differ significantly by jurisdiction, and institutions should assess their obligations and exposures under both frameworks.”
