Agency action against discriminatory DEI is likely to be Sisyphean in nature, requiring continued maintenance to be effective.
While Diversity, Equity, and Inclusion (DEI) programs have been a hot topic for almost a decade now (at least by this name), specific definitions of what constitutes or is included within “DEI” have been kept vague, either by intention, mistake or semantic overload. Non-ubiquitous definitions are perhaps why back-to-back administrations can have diametrically different positions on these programs: the Biden administration considered the implementation of DEI goals to be “the responsibility of the whole of our Government,” whereas the Trump administration considers the same goals to be “illegal and immoral discrimination.” Proponents of DEI do themselves no favors in this department.
Soft advocates contend that DEI is merely an HR-focused recognition of populations represented in their workforce, whereas hard advocates support efforts to instill decidedly partisan and potentially discriminatory practices into regular corporate life. While opponents of DEI may rightly identify specific programs as discriminatory, the first position presented by soft supporters is convenient cover for otherwise highly objectionable employment practices and the entire DEI industry. Thus, the debate will be unending without some form of external force imposing definitions upon us all.
Enter stage right, the Equal Employment Opportunity Commission (EEOC). While the EEOC is the body responsible for the imposition of DEI programs across the whole of government and arguably engaged in selective non-enforcement of otherwise actionable discrimination cases during the Biden administration, the same body is also capable of imposing strict standards by which programs can be adjudged.
After President Trump removed two of the four sitting EEOC Commissioners on January 28, 2025, the EEOC has not had the required quorum of Commissioners (three out of a maximum of five) to effectuate new agency policy through rulemaking and agency guidance documents. This has not stopped the Agency from acting through its conventional enforcement mechanisms to support the administration’s agenda; lawsuits, settlements and interactions with outside businesses enforcing anti-discrimination law have all been reported by the Agency since the presidential transition. However, for the Trump Administration’s policies to have staying power, it will need the EEOC to pass rules.
On July 17, the White House’s nominee for EEOC commissioner, Brittany Pannucio, was called before a hearing of the Senate Health, Education, Labor and Pensions Committee. During this hearing, she indicated that she was going to be following the Trump administration’s lead when it comes to the creation of agency rules and policy. Should Ms. Pannucio’s nomination be confirmed by the Senate, two of the three sitting EEOC commissioners will be Trump appointees. Presumably, they will be acting to implement the President’s executive orders opposing DEI, begging the question: “How?”
The first item of business for the EEOC ought to be the creation of a legal definition of what constitutes discriminatory DEI practices through note-and-comment rulemaking. For the sake of clarity, the Agency promulgating a rule defining what aspects of DEI programs are discrimination would also be of tremendous service to the public debate surrounding the propriety of these programs. Additionally, a working definition for courts to objectively judge whether an entity engaged in invidious discrimination when implementing DEI would instill judicial normativity across circuits.
Missouri has already engaged in a suit against Starbucks this year alleging specific practices from which the EEOC could draw inspiration to craft a working definition of a discriminatory DEI program. Prohibited practices would presumptively include percentage-based targets for workforce demographics, corporate officer compensation for compliance and participation in class-selective DEI programs, or preferential employment treatment for members of identity-based employee resource groups. While these items are specific to the Missouri case, such items were commonplace in DEI programs from 2021 until 2024. Specifically highlighting them as discriminatory would send a strong signal from Washington that these practices were not acceptable and will continue to be unacceptable. Additionally, should the EEOC alter this “prohibited DEI practices” rule in the future, it will need to do so through public note and comment, exposing any malefactors to considerable public scrutiny.
However, any rule that the EEOC creates here will likely not be the end of DEI as we have come to know it. Those with a vested monetary or ideological commitment to the DEI industry will adapt their programs to be consistent with any new regulations and may engage in discrimination by novel means. Thus, the identification of specific programs or even laying out broad interpretive definitions will quickly become obsolete as the industry responds in kind, requiring periodic edits and expansions to controlling regulations. Thus, agency action against discriminatory DEI is likely to be Sisyphean in nature, requiring continued maintenance to be effective. However, every step taken to remove invidious discrimination from public life is a step worth taking, by private individuals and the government alike.
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