Defensible Decisions: The EEOC’s New Direction and Courts’ Expanding View of Workplace Harm

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Scott Kelly: Hello. Thank you for joining us for another episode of Defensible Decisions. This is Scott Kelly. I’m a shareholder in the Birmingham and Washington, D.C., offices of Ogletree Deakins, and I’m joined today by my colleague, Nonnie Shivers, who is the shareholder in our Phoenix office. How are you today, Nonnie?

Nonnie Shivers: I’m doing great, Scott. Thanks for asking.

Scott Kelly: We’re going to spend some time talking about some recent developments from the EEOC, particularly the chair, Andrea Lucas, got on social media before the holidays on December 17th and recorded a video where she was asking white males that have been potentially subject to any type of discrimination in the workforce to come forward and file a charge of discrimination. Nonnie, tell us kind of high-level what your thoughts are about that and what implications are for employers.

Nonnie Shivers: Yeah, that’s exactly the right question, Scott. So, the big takeaway, and it’s worth reviewing because it’s a very brief video, you can look at it on X or YouTube, is that pursuant to the administration’s enforcement priorities and new federal policy over the past year, the video says one thing, and it says it very succinctly, which is soliciting white male, and this is not our language, this is what the video says recorded by Chair Lucas, solicits white male charging parties if they have suffered discrimination because of those characteristics.

To me, this reiterates one thing, which is the administration’s acute focus remains on both race and sex, and that this is the absolute enforcement priority. This just serves to clarify and double down that employers are on notice that this is the focus of “unlawful DEI enforcement priorities” by the administration and now by the EEOC, which, as Chair Lucas has told us or revised her testimony from prior years, is an executive agency following federal policy.

It also signals something that may be the case, Scott, which is the solicitation maybe because the EEOC’s not getting the cases it wants. So, employers will likely recall that Chair Lucas asked the EEOC’s various districts to identify cases, charges that were pending matching the administration’s policy and enforcement priorities. So, we see those different priorities year over year, administration over administration, or commission over commission, but this certainly puts it not in line with the strategic enforcement plan, but with the administration’s stances. I think the other thing you could address, Scott, given your unique background in government contracting and with OFCCP is the video is also important in one other regard—it’s not new. Nothing in what Chair Lucas has invited people to file focusing on whites or men is new, and it doesn’t deviate from the law. Would you walk us through why that’s the case, and what employers need to remember about that?

Scott Kelly: Yeah, absolutely. So, I mean, I think where I would be grounded is really back all the way in 1976, which is pretty close to when I was born, but I won’t give more details into that. But in a case from the Supreme Court, McDonald v. Santa Fe Trail, that case, the Supreme Court basically held that federal anti-discrimination laws do indeed protect white employees on the same terms as non-white employees. And that case dealt with two white workers that were fired for allegedly stealing antifreeze from a shipment where a black coworker implicated in the same incident was not fired.

So, the case is pretty interesting. I mean, it used the McDonnell Douglas framework, and basically the Supreme Court said that the key is whether the employer in that case applied its rules alike to members of all races. And you can, from the facts there, see that it did not. So, as you point out very accurately, this is not new. We have had cases both for federal contractors and private employers where you’ve had white alleged victims or male victims before. I’m personally aware of some because I handled many, particularly a couple during the Trump administration 1.0, where the EEOC and different employers would’ve entered into conciliation agreements benefiting only white males. And that’s happened more than a handful of times throughout OFCCP’s history, but certainly happened in Trump 1.0. So, I think that you don’t have to go very far to find the evidence that whites and men have been able to recover under Title VII since the Supreme Court had that decision back in 1976 and then in recent times, as well.

I agree with you that it’s interesting that that request or solicitation, the timing of it when it came, and it makes me wonder how well some of the cases that might be in EEOC’s pipeline through different charges that have been filed are going for them. And we’ll get to this probably in another episode where we can talk about some of the changes that the EEOC commissioners have voted on to make related to the delegation of litigation authority. But I’m thinking that they are certainly looking for cases to advance the policy objectives of this administration, this being a very important policy objective. And I’m just not sure they’re having that much luck with the cases that are already in their pipeline, would be one potential takeaway from me. What other cases do you think employers need to be aware of, Nonnie, as they’re considering how to deal with the issues that are arising from Chair Lucas’s solicitation?

Nonnie Shivers: Yeah, I think there’s two that come to mind, Scott. I’m glad you asked that. We’ve talked at length in our presentations in the past, our podcast, about Muldrow, and it’s by far one of the most significant developments in redefining or clarifying Title VII. And remember Muldrow‘s essential holding, which is you don’t have to have significant harm to show that an adverse action occurred. So, it’s really important that people lean into the law. So, this solicitation occurred, we’re looking for these charges, these charging parties, and Muldrow says your harm could be minimal. It could be just some harm, not substantial harm, not a termination, not a failure to hire, not the ultimate adverse action, but it could be something like failure to include you in meetings, denial of training opportunities, not opening up a process and competitively promoting instead, doing shoulder taps and not being considered. It’s just some harm. And so, I think Muldrow is one that’s incredibly important.

And of course, we’d be remiss if we didn’t talk about the Ames decision. It’s been a busy few years for Supreme Court authority in the employment context. Remember, the essential nature of Ames was a claim by a female heterosexual employee who claimed that an LGBTQ employee had been promoted due to those characteristics and that this was a form of discrimination, and the Supreme Court certainly agreed with that. That further doubles down that these are viable claims. And frankly, as you noted with the McDonald v. Santa Fe Trail case, those have been.

And so, what I think that there are some impacts there, really practically speaking, which is potentially we’ll see more demands, more suits, and more difficulty after Muldrow potentially getting past summary judgment, which has been a tool in the toolkit for many, many years.
I also think employers have to remember that even with the change in federal policy, that disparate impact claims still exist and can be brought, even if the federal government will not be enforcing those or pursuing them and has, in fact, withdrawn. And so, those disparate treatment claims will be brought on a systemic basis at the EEOC and individually, of course, but that doesn’t stop the plaintiff’s fire and private litigants from pursuing those claims at all.
I think that triumvirate of developments will further foment these types of claims and the risk that people see, which is why we have certainly suggested employers consider fully documenting all employment decisions. Falling back on the at-will employment standard at play in nearly every state is not going to serve your well if you’re not able to show that legitimate non-discriminatory reasons and decisions were the basis for those employment decisions.
What do you think? Anything to add on Ames, Muldrow disparate impact, Scott?

Scott Kelly: What I’d really like to speak to for a minute is exactly where you just left off and making sure that you’re keeping the records, you’re documenting in real time the decisions that you’re making as an employer. And I think your point about these can certainly be single, one person brings the claim, and those can be fairly straightforward to deal with. But when you’re looking on a systemic or a pattern in practice type of a lens, you’re looking at things . . . when you hear systemic or you hear pattern in practice, another way to look at that or think about that is don’t get boxed in on the legal jargon here, but I mean, think class-type discrimination places where we’re talking lots of potential victims at play, and you’ve got a lot of individual decisions that are going to be somewhat glossed over, and you need to look at them and see if there’s any kind of trends that would be developing from that.

And I find particularly from a vantage point where I’ve spent a large part of my practice helping federal contractors with their federal hiring and selection, designing those systems, working to make sure that you’re—for those that you’re listening that had federal contracting obligations, you’re very familiar with the internet applicant rule. And what you were doing there is you were basically making record or documenting all your decisions through your selection process, but really, it was why people were necessarily not making it into your applicant pool or continuing to the next stage of the selection process.

And I think now this administration is interested more in why you’ve made the decisions and how you defend upon the fact that they are merit-based and that there are legitimate non-discriminatory factors. That to me is a paramount issue that I think employers of all shapes, sizes, whether you’re a federal contractor or not, really need to make sure that they have systems in place to capture that information in real-time, because defending on a pattern or practice or systemic case will become very challenging if you don’t have that. It might be not as difficult in an individual situation, and I’m not necessarily endorsing that you wait to do that. I think it’s paramount of importance to do it in real time and make sure that you have the practices in place to be consistent with all of the record-keeping. But in a one-off situation, you might be able to reverse engineer while certain decisions were made. That becomes much more difficult when you’re dealing with things on a systemic or a class-wide basis.

Nonnie Shivers: I think that’s exactly right, Scott. It’s very, very well put to document decisions at all stages and really reevaluate where that’s happening. I also think one of the practical realities is that we need to update training modules to be maximally inclusive with examples, questions, quizzes, and materials to understand this broad brush of the law, which already existed. I think that making sure that our leadership is well-trained, understands the law, and that us leaning to the law is not just HR and legal, but it’s at all levels of the organization as to all decisions at all stages is really the marching order from here on out.

Scott Kelly: Yeah, I think you’re right. And I think employers that I’ve worked with sometimes, particularly federal contractors, we’ve always been very cognizant of the enforcement priorities, of the administration. And I think if you kind of take that . . . one of the things that I think employers might be struggling with with this administration, kind of back to your point that President Trump has entered an executive order saying that he doesn’t want his federal agencies really enforcing any kind of disparate impact theory, you’ve seen the Department of Justice take some steps to get rid of some of those rules for certain statutes. But the disparate impact theory is codified in Title VII in the 1991 amendments. And we’ve seen, just as recent as January of 2026, where prominent plaintiff firms have filed class actions alleging disparate impact theories for Title VII discrimination related some to artificial intelligence usage and selection procedures and things like that.

So, it’s definitely still a risk out there for employers. I know there’s also talk that the EEOC, one of the priorities it may have would be to try to get rid of the uniform guidelines on employee selection procedures. And that obviously is another way to try to chip away at some potential disparate impact theories and enforcement mechanisms. They have not, to be clear, made any public announcements on that that I’m aware of or taken any action. It’s just kind of grumblings of what you’re hearing might be coming down the road. But I think while all that is going on, you have to remember that you’ve got private plaintiffs and private plaintiff law firms, and frankly, some states that might take up the mantle, so to speak. And so, it’s really important to understand who all might be a potential risk that you’re monitoring against, and don’t just stop at the federal employment enforcement agencies.

Nonnie Shivers: Yeah. So, let’s end on one note, Scott, which is that’s all really helpful for people to consider. If you get a charge and it relates to Chair Lucas’s or responds to her call for action, you might want to be prepared. So, probably not going to be eligible for mediation, likely going to be a fast-tracked investigation or at least potentially classified as an A-charge, could lead to systemic claims and requests. And don’t be entirely shocked, if you’re a federal contractor, if this leads to Department of Justice collaboration. So, just word to the wise that the typical playbook that you can get extensions, in all likelihood that you will have time to respond, that it may take a while, that may not be the case in these charges.

Scott Kelly: Yeah, totally agree. I think we’re anecdotally hearing or seeing boots on the ground where we’re seeing some single charges that it appears the commission is trying to expand a bit into some type of systemic issue as far as the investigation goes. So, it’s important to get ahead of that, make sure you’re doing . . . I’d say, make sure you’re doing some really thorough investigations on the front-end to make sure you understand what you’re putting in your position statements to be 100% accurate. So, a lot of this isn’t altogether new. It’s just an important reminder of all the best practices that we’ve been operating on for some time could not be more important.

Nonnie Shivers: Absolutely. Well, thanks for that, Scott, and thanks for the fulsome discussion of these issues so employers can be prepared.

Scott Kelly: Absolutely. Thanks for joining today, and I appreciate it. Hopefully, the audience got something out of this, and we’ll look forward to welcoming them on another Defensible Decisions episode in the future. Thanks, Nonnie.

Nonnie Shivers: Thanks, Scott.

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