Introduction

Upon her appointment as Acting Chair of the EEOC in January of last year, a position that has since been elevated to Chair, Andrea R. Lucas said:

In recent years, this agency has remained silent in the face of multiple forms of widespread, overt discrimination. Consistent with the President’s Executive Orders and priorities, my priorities will include rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single‑sex spaces at work; protecting workers from religious bias and harassment, including antisemitism; and remedying other areas of recent under-enforcement.

President Appoints Andrea R. Lucas EEOC Acting Chair, EEOC Press Release (January 21, 2025).  The EEOC has focused on those areas.

Spotlight on DEI

The EEOC has staked its position as adamantly opposed to any program that even touches on diversity, equity, and inclusion (DEI). Early in 2025, the Commission published guidance to employees and employers regarding “What You Should Know About DEI-Discrimination At Work” (the Guidance), in which the EEOC made clear that “[u]nder Title VII, DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.” To confirm its position, at roughly that same time, the EEOC and Department of Justice jointly issued a one-page technical assistance entitled “What To Do If You Experience Discrimination Related to DEI at Work,” which states: “If you suspect you have experienced DEI-related discrimination, contact the EEOC promptly because there are strict time limits for filing a charge.”  Since that time, Chair Lucas published a video soliciting white men to bring charges for discrimination

In the Guidance, EEOC sets out examples of workplace violations:

• Implementing “quotas” or “otherwise ‘balancing’ a workforce by race, sex or other protected traits”;
• Excluding individuals from training, fellowships, mentoring or sponsorship programs on the basis of their protected characteristics;
• Selecting candidates for interviews, including placement on candidate slates, based on their protected characteristics;
• Limiting membership in workplace groups, such as employee resource groups (ERGs), to certain protected groups;
• Separating employees into groups based on protected characteristics when “administering DEI or other trainings or other privileges of employment […].”

To an extent, the Guidance reaffirms doctrines long-established under Title VII of the Civil Rights Act of 1964 (Title VII). Title VII has always “appl[ied] equally to all workers.” “Congress drafted the statute broadly to cover race or color discrimination against anyone – Whites, Blacks, Asians, Latinos, Arabs, American Indians and Alaska Natives, Native Hawaiians and Pacific Islanders, persons of more than one race, and all other persons.”  Still, the Guidance indicates a heightened awareness.

While quotas have long been prohibited, the focus on Employee Resource Groups (ERG), Business Resource Groups (BRGs), or other employee affinity groups is new.  Membership in these groups cannot be limited to certain protected categories of employees. As the Western District of Washington noted, “[w]hen properly structured, they are voluntary and open to all who share the group’s goals, and can foster a sense of belonging and respect that advances equity in the workplace and improves the bottom-line.” Diemert v. City of Seattle, 776 F. Supp. 3d 922, 949–50 (W.D. Wash. 2025). “But there's a flipside: when such groups endorse exclusionary practices—whether through restricted membership, segregated spaces, or disparate access to professional opportunities—they risk transgressing fundamental equal protection principles and other civil rights laws.” Id. Employers are smart to ensure that any ERGs they have are open to all and entirely voluntary, with no additional employment benefit for participating and no consequences to those who chose not to participate.

Similarly, the EEOC has announced that diversity training can potentially create an actionable hostile work environment, while most courts have held that DEI training on its own is not actionable. One court has observed that race-based training programs can create hostile workplaces when official policy is combined with ongoing stereotyping and explicit or implicit expectations of discriminatory treatment. Young v. Colo. Dep't of Corr., 94 F.4th 1242, 1253 (10th Cir. 2024). Similarly, the Western District of Washington held that “DEI and anti-discrimination trainings are not per se unlawful,” and that “sweeping allegations about the effect of" such programs are not sufficient to transform a workplace into a racially hostile environment for a plaintiff and other white people. Diemert, 776 F. Supp. 3d at 940.

Nonetheless, employers need to be aware that the EEOC is taking a critical eye to anti-discrimination and/or pro-diversity trainings and has empowered individuals to bring hostile work environment claims with the EEOC for these mandatory trainings. In February, the EEOC sent a letter to the Chief Executive Officers, General Counsel and Chairs of the Board of Directors of all Fortune 500 companies entitled, “Reminder of Title VII Obligations Related to DEI Initiatives” with the stated purpose of ensuring “that, in your respective roles as chief executive officer, general counsel, and chairman of the board, you are aware of the EEOC’s technical assistance documents addressing race and sex-based discrimination in employment that may result from a company’s so-called diversity, equity, and inclusion (DEI) policies, programs, or practices.” In bringing an action against the New York Times for failure to promote an editor, the EEOC cited to past DEI training as evidence of discriminatory animus.

Anti-American Bias?

As would be indicated from the scrutiny being given to DEI programs, the EEOC has stated they are focused on eliminating what they have termed “Anti-American Bias.”  Early in the new administration, then-acting Chair Lucas pledged rigorous enforcement by the EEOC of civil rights laws against companies that allegedly show bias for foreign workers, including visa holders, over U.S. citizens. “Unlawful bias against American workers, in violation of Title VII, is a large-scale problem in multiple industries nationwide,” Lucas said. “Many employers have policies and practices preferring illegal aliens, migrant workers, and visa holders or other legal immigrants over American workers—in direct violation of federal employment law prohibiting national origin discrimination. Cracking down on this type of unlawful discrimination will shift employer incentives, decreasing demand for illegal alien workers and decreasing abuse of the United States’ legal immigration system.”

This goal is now explained in a technical assistance document published on November 19, 2025, titled “Discrimination Against American Workers Is Against The Law,” which stated that “employment policies, programs, or practices may be unlawful national origin discrimination if they involve an employer . . .  taking an action motivated—in whole or in part—by an applicant’s or employee’s national origin.” While this has been the law since the passage of Title VII, the EEOC says it is looking to prevent:

• Discriminatory job advertisements that say “the employer prefers or requires applicants from a particular country or with a particular visa status” (for example, “H-1B preferred” or “H-1B only”).
• Disparate treatment of natural born Americans, such as “a company terminating American workers who are on the “bench” between job assignments at a much higher rate than employees who are visa guest workers,” or by” making it more difficult for applicants from one national origin to apply for positions (for example, subjecting U.S. workers to more laborious application methods than H-1B visa holders during the PERM labor certification process).”
• Harassment by unwelcome remarks or conduct based on an employee being born in the United States.

The EEOC then warned that common business reasons do not justify national origin discrimination, reasons such as customer or client preference; lower cost of labor “(whether due to “under the table” payment, or abuse of certain visa-holder wage requirement rules)”; [or] “beliefs that workers from one or more national origin groups are “more productive” or possess a better work ethic than another national origin group.”

Religious Accommodations are a Major Focus

For decades, the legal standard to establish an undue hardship or hardship under Title VII (which would relieve the employer of any reasonable accommodation duty) was articulated in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). Many federal courts considered Hardison to require that an employer prove a “more than de minimis cost.” In the recent decision, Groff v. Dejoy, 600 U.S. 447 (2023), however, the Supreme Court of the United States sought to “clarify” that legal standard without actually overruling Hardison. 600 U.S. at 454. The Supreme Court reasoned that the Hardison decision could not be “reduced to that one phrase” of de minimus, as some courts sought to do. Id. at 468. Instead, an employer must show that the “burden of granting an accommodation would result in substantial increased cost in relation to the conduct of its particular business.” Id. Courts must consider “all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of an employer” and apply the test in a “common-sense manner.” Id. at 471. Groff further confirmed that non-economic factors (like coworker impacts and/or seniority rights) were properly part of that application. Id. However, the Supreme Court expressly rejected adopting the higher, more stringent undue hardship test imposed by the ADA. Id. at 471.  

Since January 2025, the EEOC has filed 16 religious discrimination lawsuits and recovered over $63 million on behalf of religious workers via public and private pre-litigation voluntary resolutions, as well as litigation settlements. In FY 2025 alone, the agency obtained “record-breaking” recoveries for religious workers (over $48 million).  What can we learn about how the EEOC will enforce the Groff standard against employers:

1. Rigorously evaluate whether a requested accommodation is an undue hardship, much like you would for a disability claim. The EEOC has recently sued employers for allegedly failing to accommodate a Christian truck driver and a Christian security guard who sought accommodations to attend religious services, as well as a one-store change for allegedly demoting a Jewish assistant store manager because of his Sabbath observance. Additionally, the EEOC has filed two lawsuits against employers who denied their employees’ requests to wear skirts instead of pants for religious reasons.
2. Tread cautiously when considering off-work conduct. The EEOC has sued an employer for allegedly firing a Christian employee over social media posts that did not mention his workplace or coworkers, but that did contain Bible verses.

Pregnant Workers Fairness Act (PWFA)

EEOC Chair Lucas has been vocal in her opposition to certain parts of the Commission’s Final Rule implementing the PWFA, saying she believes it broadens the scope of the statute in ways that cannot be reconciled with the text. Nonetheless, that one policy disagreement has not stopped the EEOC from enforcing the PWFA. Requests to sit, drink water, and take unpaid breaks are the type of accommodation requests falling within the scope of “predictable assessments.” The EEOC’s stance is that predictable assessments “will, in virtually all cases, be found to be reasonable accommodations that do not impose an undue hardship when requested by a qualified employee due to pregnancy.”

Reasonable accommodations related to lactation include providing breaks to express milk and a space to do so. Lactation accommodations may include nursing “where the regular location of the employee’s workplace makes nursing during work hours a possibility because the child is in close proximity.” Leave is considered an accommodation of last resort. Employers cannot require workers to take paid or unpaid leave if another reasonable accommodation can be provided.

Conclusion

The EEOC setting strategic priorities about the cases and issues upon which it will focus agency resources is nothing new. Indeed, for many years, the EEOC published their strategic priorities on a five-year, forward-looking basis. The recent announcements by Chair Lucas and cases being prosecuted by the EEOC provide guidance to employers on areas of EEOC focus. If you have any questions about the EEOC’s current enforcement priorities or need assistance on any other labor and employment matters, please contact our Labor & Employment Practice Group.