By Richard Vanderford

President Trump's pick to protect workers from discrimination says she wants to take on the bias she sees in diversity, equity and inclusion programs.

Taking into account a worker's race, ethnicity or sex when offering opportunities in the workplace isn't legal, regardless of a company's intentions, Andrea Lucas, the new acting chair of the Equal Employment Opportunity Commission, said in a recent interview. Businesses' programs during the Biden administration could lead to legal action, she said.

Under Lucas, who worked as an employment lawyer before serving as an EEOC commissioner , the EEOC is also launching a crackdown on what it calls anti-American bias in the workplace, a practice of companies showing a preference for foreigners over Americans.

"Civil rights laws are written in a way that applies to everyone," Lucas said. "They're colorblind, they're group neutral, [and] they're not written to only provide protections to certain subgroups of workers."

"If you are running a program, whether you call it DEI or something else, and you are using race or sex or another protected characteristic in an employment decision, even if it's only just part of the decision...that's unlawful discrimination," she said.

The Supreme Court last month signaled it would likely find there should be no special hurdles for members of majority groups, such as straight people, seeking to file employment discrimination lawsuits.

DEI in the crosshairs

Protests erupted nationwide in 2020 after the killing of George Floyd while in police custody, spurring many U.S. companies to revamp their human resources policy to lean into DEI, with some carving out special training programs for minority employees and others setting explicit targets for new hires.

Target, for example, in 2020 said it would focus on the "career progression and advancement" of Black team members, a pledge it has since walked back. Nike in 2021 set a 35% workforce target for racial and ethnic minorities. Software company Salesforce set a goal of having half its staff identify as being from an "underrepresented group."

Lucas in her interview didn't comment on the practices of any specific company. Salesforce, asked about its previous statements, said it has no representation goals and doesn't make employment decisions based on race or other classifications protected by law. Target and Nike didn't respond to requests for comment.

Trump has targeted DEI initiatives, though his early moves have focused on the federal government and federal contracts. With the government an important buyer of goods and services, many companies have quickly revamped their policies.

Other companies, such as warehouse retailer Costco Wholesale, have stuck with their DEI programs.

As head of the agency tasked with protecting workers from bias, Lucas has the power to go after the practice in workplaces around the country, and could help accelerate a corporate flight from DEI already under way. She said it should be obvious that, for example, businesses can't consider race in employment decisions.

"It's easy enough to see that if you flip it on the other side," Lucas said. "If you carved out a training program only for men or only for white employees, everyone would immediately and viscerally understand that that was unlawful."

"The laws are neutral and evenhanded," she said. "You may think that you have a benign motive to help individuals who are historically underrepresented. That's not going to be enough to save your program."

The EEOC, which enforces the employment-related aspects of civil rights law, can push for policy changes, demand outside oversight of companies and seek penalties and compensation that can stretch into the tens or even hundreds of millions of dollars.

Unlike some other federal law enforcement agencies, it has a relatively short statute of limitations -- less than a year after the alleged discrimination in most cases -- but can act on claims that were brought within the appropriate time, Lucas said. She said the agency has claims in its system dating back to 2020 that are still considered "live."

"It would be unwise for employers to assume, if they engaged in discrimination in a past administration, that they're off the hook based on timing," Lucas said.

The agency in a follow-up said that Lucas's remarks were on the general timeline for EEOC investigations and that the agency couldn't confirm or deny the existence of any specific charge.

'Merit-focused decision-making'

The shift doesn't mean businesses should stop caring about equal opportunity, Lucas said.

Antidiscrimination work in the human resources department should shift to "merit-focused decision-making" and breaking down real barriers to employment such as, for example, training and promotion systems that let managers play favorites, Lucas said.

HR experts have long called out what is known as affinity bias -- the tendency to favor people similar to oneself -- as a risk for introducing racial and other illegal discrimination into employment decision-making. More formal training or promotion processes could help some organizations, Lucas said.

Programs to, for example, offer training or mentoring to employees who are the first in their family to graduate from college would also pass muster if implemented in a truly race-blind manner, Lucas said, noting that those programs might equally benefit a hypothetical "white kid from Appalachia" and "poor Asian kid from Los Angeles."

Anti-American bias

The EEOC will also be on the lookout for bias against American workers. National-origin discrimination, such as preferring an American worker, is illegal. But the EEOC under Lucas said there is room for more investigation and enforcement of preferences that some companies might have for non-American workers.

The EEOC said last month it also intends to use this power to protect American workers who might not be hired because of the perception that foreign-born workers have a better work ethic. The agency recently entered into a $1.4 million settlement with a Guam resort operator that favored Japanese workers over Americans.

Lucas said the move fits with Trump's push to tackle illegal immigration "as well as our broken legal immigration system."

Businesses that improperly favor even legal immigrants, such as H-1B visa holders, could face actions, she said. That visa type, created to admit highly skilled workers, has been used by large technology companies to help fill staffing needs.

"The fact that you have...acquired a visa slot doesn't necessarily mean that you're in the clear," Lucas said, though she added that the EEOC is only involved in enforcement of U.S. antidiscrimination law and not in questions of immigration policy.

Lucas encouraged whistleblowers within staffing agencies and HR departments to come forward if they see discrimination and to file EEOC complaints as soon as possible.

"The EEOC is fully supportive of advancing civil rights for all," she said. "It's just not going to be with this really divisive identity politics that DEI entails."

Write to Richard Vanderford at Richard.Vanderford@wsj.com

(END) Dow Jones Newswires

March 06, 2025 05:30 ET (10:30 GMT)

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