Almost two years ago, in March 2024, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a Charge of Discrimination against Nike, alleging that aspects of the company’s diversity, equity, and inclusion (“DEI”) policies may have resulted in discrimination against white employees and job applicants. Most recently, in an escalation of its investigation, on February 4, 2026, the EEOC took the unusual step of filing a subpoena enforcement action in federal court, seeking Nike’s workforce demographic data, layoff criteria, and details on internal mentoring and development programs. This subpoena enforcement action is especially notable because it stems from an EEOC commissioner’s charge, not an individual complaint — a powerful and rarely used enforcement tool.
This probe reflects a broader federal shift toward closer scrutiny of corporate DEI initiatives and how they intersect with long-standing anti-discrimination law under Title VII of the Civil Rights Act of 1964, championed by the new Chair of the EEOC, Andrea Lucas. Indeed, upon her appointment as Acting Chair in January 2025, Chairperson Lucas stated that rooting out unlawful DEI motivated race and sex discrimination would be a major priority for her tenure. (Other key priorities that she outlined were protecting American workers from anti-American national origin discrimination, religious bias and harassment, including antisemitism; and defending the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.)
New Federal Guidance Signals Expanded DEI Liability Risks
Less than two months later, in March 2025, the EEOC and the U.S. Department of Justice issued a joint technical assistance document titled, “What To Do If You Experience Discrimination Related to DEI at Work.” This Guidance states that DEI practices may be unlawful if an employment action is motivated, even just in part, by an employee’s protected categories. Thus, if an employer seeks to maintain a diverse workforce in terms of age, race, national origin or sex and advances those factors by recruiting to these groups (for instance by recruiting from associations that further the interests of women or people of color), that employer may be advancing an unlawful DEI initiative. This Guidance, especially when combined with a recent “reverse discrimination” ruling from the U.S. Supreme Court, significantly restricts how employers may implement DEI programs going forward under federal anti-discrimination law.
The Supreme Court Eliminates the Higher Bar for ‘Reverse Discrimination’ Claims
When considering “reverse discrimination” cases in years past, many courts required a plaintiff to demonstrate evidence of “background circumstances” showing that their employer was an “unusual employer who discriminates against the majority.” This heightened evidentiary standard was required in addition to the other elements of a typical disparate-treatment claim when such a claim was brought by a majority-group member but was not required for plaintiffs alleging discrimination if they were members of a minority group. However, this changed in June 2025 when, in Ames v. Ohio Youth Services, the Supreme Court ruled in a unanimous decision that majority group employees are not required to meet a higher standard of proof when alleging a claim of “reverse discrimination” under Title VII.
The Ames decision now allows all plaintiffs to bring claims of discrimination without a showing of the additional “background circumstances” element – making the standard the same for all plaintiffs, regardless of their membership in a protected majority or minority class. As a result, it will now be much easier for a member of a majority class to bring (and potentially prevail in) an employment discrimination lawsuit. Consequently, companies should expect an increase in employment discrimination claims brought by White, male plaintiffs alleging that they were not hired, that they were terminated, that they were passed over for promotions, or that they otherwise experienced unlawful adverse employment actions because of company-wide DEI programs.
And adding fuel to that fire, in December 2025, approximately six months following the Ames decision, Chairperson Lucas posted a video on social media asking, “Are you a white male who has experienced discrimination at work based on your race or sex? You may have a claim to recover money under federal civil rights laws. Contact the EEOC as soon as possible. Time limits are typically strict for filing a claim.” The social media post further stated that the “EEOC is committed to identifying, attacking, and eliminating ALL race and sex discrimination — including against white male employees and applicants. Visit http://EEOC.gov to learn more and read our one-page explainer about DEI-related discrimination.” In a subsequent interview, Chairperson Lucas said she was determined to undo the consequences of five years of “aggressive focus by DEI activists” that reserved the protections of the country’s civil rights infrastructure for certain groups.
What Employers Should Do Now to Reduce Legal Exposure
With all these developments taking place within the twelve months, there can be no debate that the EEOC is encouraging majority group members to review their circumstances at work and, at the very least, consider whether they had been or are continuing to be negatively impacted by a DEI program at their company. For this reason, many companies have already removed or are in the process of removing company-wide DEI criteria on their public websites or in internal documents. For example, in light of a request by the conservative nonprofit National Legal and Policy Center, Goldman Sachs recently ended its pledge to encourage board diversity at its clients that are going public and is planning to forgo DEI criteria in its process for selecting board members.
Although not every company will agree with this approach, from the perspective of alleviating unnecessary legal exposure, employers should, at the very least, think long and hard about whether they should continue any of their DEI programs that are still in effect, in particular if the company is a government contractor. To that end, to the extent company employee handbooks reference initiatives that could be used as the basis for a “reverse discrimination” lawsuit, such as a statement that a company “is committed to fostering, cultivating, and preserving a culture of diversity and/or inclusion,” or a statement that a company “embraces its employees’ differences in age, race, ethnicity, etc.,” those employee handbooks should be revised and those sections should be redrafted. Finally, employers must be extremely careful about continuing to use some sort of affirmative action policy, as that could be a surefire way to be on the receiving end of a lawsuit from either an individual, the EEOC, or both.
Kara Maciel is a founding partner of Conn Maciel Carey LLP and Chair of the firm’s national Labor • Employment Practice Group. She focuses her practice on representing employers in all aspects of the employment relationship.
Jordan Schwartz is a partner with Conn Maciel Carey LLP. He advises employers on a wide range of complex employment-related issues.