Navigating Employment Law as the Ground Shifts at the EEOC

Episode Notes

Transcript

Jenny Yang:

The EEOC is charged with addressing some of the hardest and most consequential issues for our country, race, sex, religion. So its structure had historically allowed commissioners with different perspectives to deliberate and give the agency independence from the political direction of any one administration.

 

Matt Greer:

How has the changing focus of the Equal Employment Opportunity Commission affected how lawyers practice discrimination law? Join former EEOC chair Jenny Yang and former commissioner Leslie Silverman as they break down the shifting priorities of the agency that are reshaping federal discrimination enforcement. They emphasize the core statutes and case law remain unchanged and offer practical guidance to help employers and workers navigate the fast moving dynamics created by the current EEOC’s evolving focus. Hello, and welcome to the ABA Labor and Employment Law Podcast. I’m your host, Matt Greer. In my day job, I work for the Washington State Public Employment Relations Commission, where I spend most of my time serving as a public sector labor relations mediator, hearing examiner, arbitrator, and trainer, always as a neutral. Probably like you, my focus area is one small piece of the bigger labor and employment law universe. I enjoy broadening my horizons through this podcast and learning about what’s going on in the wide world of labor and employment law from experts in the field.

On today’s episode, I’m very happy to welcome Leslie Silverman and Jenny Yang to discuss what’s happening at the Equal Employment Opportunity Commission, the federal agency that’s charged with enforcing a variety of federal discrimination laws. Jenny is a former chair of the EEOC and currently a partner at the Law Firm of Outten & Golden, where she represents employees. Leslie is former vice chair and member of the EEOC and is currently a shareholder at the Law Firm of Fortney & Scott where she represents employers. We are very fortunate to have both Leslie and Jenny on the podcast to share their perspectives from both their current practices as well as their experience at the EEOC. Be sure to check out their full bios in the show notes. Thank you so much for joining us, Jenny and Leslie. Welcome to the show.

 

Leslie Silverman:

Thanks, Matt. Thanks for having us.

 

Jenny Yang:

Yes, thank you. It’s great to be here.

 

Matt Greer:

Really excited about this conversation. Lots to talk about on this topic. So I though to start off with, most of our listeners are probably kind of generally aware at least of things that have been going on at the EEOC or maybe have seen some of the headlines, but we’re here to dig down into a little deeper about what’s been happening at the EEOC. And I don’t know, Leslie, do you want to start off by just giving us some context for maybe where the role has been, what have been some of the changes, some of the things that have been happening at the EEOC to give us a little bit of a starting point there?

 

Leslie Silverman:

Absolutely, Matt. So I just want to level set us and take us back a year because we’re now, what, a year and a half into the Trump administration. And during the first year alone, we saw a lot of changes at our former agency, the EEOC, particularly in its approach to certain substantive areas of law, including disparate impact and some LGBTQ issues, and we’re going to touch on some of those later. But there was an important limitation on what the commission itself could do because President Trump had taken the unprecedented step of removing two sitting Democratic appointed commissioners, former chair Charlotte Burrows, and former Vice Chair Jocelyn Samuels, and that left the then acting chair, Andrea Lucas and Commissioner Kulpin a Democrat as the only two commissioners. And without a quorum of at least three, the commission couldn’t take some of the actions that it would normally take, really anything that required a commission vote that hadn’t been previously delegated.

Well, that changed last fall when the Senate confirmed Brittany Pannuccio, which not only restored the commission’s quorum, but it gave Chair Lucas a Republican majority. And since then, things have moved very quickly. I’ve been watching the EEOC for a long time, and I don’t think I’ve ever seen the kind of changes at the commission that we’re seeing in 2026.

 

Matt Greer:

Yeah, no, that’s fascinating. There’s been a lot going on. I don’t know. Jenny, do you share that perspective? Are you seeing – I

 

Jenny Yang:

Do. I completely agree with Leslie about the pace and scope of change at the EEOC. It has been unlike anything we’ve seen in the past. The structure of the commission is such that over changes in administrations, we have not seen wild swings in the way that we’re seeing right now. And it really reflects a broader transformation in civil rights enforcement across this administration, and not because the law has changed, but because of how these enforcement agencies are choosing to interpret and apply the law. So what we’re seeing is EEOC advancing positions that depart sharply from longstanding interpretations of Title VII on disparate impact, practices to advance diversity, equity, inclusion, LGBTQI+ protections, demographic data collection, and even the EEOC’s own authority to issue guidance under Title VII. These dramatic shifts can make it difficult for employers as well as advocates on all sides to separate the changes from federal policy to changes in legal obligations.

This dramatic shift does create risk that employers might respond to the pressure by pulling back or retreating from valuable practices with a demonstrated track record of advancing equal employment opportunity. And although there may be increased scrutiny and attention to these issues, it’s important to remember that these federal agencies are also operating with substantially reduced resources. They’ve lost talented staff with decades of experience and they are frankly having trouble recruiting new attorneys with the kinds of experience they’ve traditionally had. So when EEOC advances an untested legal theory or an overbroad subpoena enforcement action, the agency has to prove that theory in court and the EOC, DOJ and other enforcement agencies can only bring a limited number of cases. So that’s why it’s important for employers to stand up for themselves when they see overreach.

 

Matt Greer:

Yeah, no, thanks to you both for laying that out. I think probably people figured out from the intro, but the two of you obviously have in your previous roles at the EEOC represented those two different perspectives. I think it’s important to note that historically we have the employer and employee perspectives represented here from both of you. So that’s why I think it’s really, really valuable to have this conversation and maybe talk about that history and how that contrasts with maybe some of the things that are going on today. So appreciate you doing that. Leslie, I don’t know what’s one of the things that you think of as an area that’s really kind of changing right now that people should be aware of?

 

Leslie Silverman:

Well, I mean, not to sound inside baseball, and people from the outside don’t always know how the salami is made, but the commission’s own the way it operates, its voting procedures, things like that. There’s been some big changes there as well, and that makes a difference on how the commission itself works. And of course, we’re also seeing changes on the outside. I mean, the fact that the Supreme Court’s decision in Trump v. Slaughter, which affirmed that the president could remove, it wasn’t for the EEOC, but it obviously applied to EEOC, a commissioner at will kind of changes the way the commission operates. And we’re seeing that as well just in this administration. Generally, the EEOC has become, they used to call it a quasi-independent agency in my time, but we didn’t have interference or even direction from the White House or other agencies except for occasionally DOJ, Office of Legal Counsel.

But now the administration very much views us as an executive agency. But how the commission itself is really operating and some of the changes that have been just made now that there’s a majority of Republicans at the commission to provide some context, in January of this year on the 14th, the commission voted two to one to rescind a formal voting procedure, which it adopted earlier in the month. And those procedures governed how matters were circulated to commissioners, how much time they had to consider them, and when a commissioner could require an issue to be considered in a commission meeting. So it’s not just about who holds the majority, it also goes to the internal processes that shape the deliberations and shape how the commission makes policy decisions. And those rescissions return considerably more control over that process to the chair. And I wanted to add a distinction.

The one thing about Jenny and some other chairs is Jenny was also a commissioner before she was chair. So the commissioners have much more limited ability to affect change, but some, and the chair used to hold a lot, but it’s different now, isn’t it, Jenny?

 

Jenny Yang:

Yeah.

 

Matt Greer:

Yeah, I was curious, and can I follow up on that, Jenny, the changes that Leslie just outlined in terms of those voting procedures? I mean, there is a little bit of the inside baseball perhaps there, which I think is really interesting, but I’m curious if there’s any perspectives on those changes and the impact of that. Does that essentially make decisions quicker, slower? Is there a practical impact in terms of how we’re seeing things coming down now in terms of those changes?

 

Jenny Yang:

Yeah, that’s the interesting question. And Leslie, your point that I was first a commissioner before a chair is interesting because I hadn’t thought about it like that because I think having been a commissioner, you understand that it can be frustrating when you’re not included in important decisions that are being made that might have to do, some might say with operations and not policy. But my view is that it was important to involve the commission early so that we could align and issue guidance that would have credibility and where we could to get the votes of Republicans as well. We had a Democratic majority, we didn’t need the Republican votes. We could have moved much faster just moving through on a partisan line, many policy priorities, but instead we actually prioritize the long-term credibility of the institution as well as ensuring that all of our constituencies, employers, workers, and others had the opportunity to be a part of the process of our policy deliberations and our strategic priorities.

So I think we’ve seen some really dramatic shifts from a very open process. I started the EEOC’s first public input process for our guidance documents, and we also had a very open process identifying our strategic enforcement plan priorities where we had a commission meeting, people had opportunity to write in, and that is something we have seen completely end. The new national enforcement priorities this commission adopted were done without any public input process. We are seeing this agency become politicized in a way that I have never seen it before. And I don’t think it is helpful for the country because we can’t lose sight of why Congress created a bipartisan commission in the first place. The EOC is charged with addressing some of the hardest and most consequential issues for our country, race, sex, religion, and other forms of discrimination. So its structure, the five-member bipartisan commission had historically allowed commissioners with different perspectives to deliberate and give the agency independence from the political direction of any one administration.

So at my time as chair, we met with the White House. They were very careful not to tell us what to do. They would repeat that this was our decision, here was their viewpoint, but it was our decision, and especially on enforcement. We’re very careful to say we’re not expressing any views on any cases. When I was at the White House, so in the Biden-Harris administration served in the Domestic Policy Council leading a team on racial justice and equity, we were also very careful not to direct the EEOC to do anything, recognizing the independence of the agency to make carefully informed decision based on the expertise and thinking about the long-term trajectory of the law. It wasn’t about electing a particular president or advancing those priorities, but thinking about the law.

 

Matt Greer:

Right.

 

Leslie Silverman:

And let me add that I was the vice chair and the commissioner before that under a Republican controlled commission, but it was the same idea. We did collaborate. I can’t say on every single issue that there was agreement, but we did collaborate. We didn’t have as much public input, certainly not in guidance documents at the time. Those changes came after me, but the way we operated was collectively because that’s why it was a commission. It was to work together.

 

Matt Greer:

Again, I really appreciate you both providing that background about the EEOC and how it’s operated historically. I don’t know, Leslie, is there anything on your radar in terms of how the EEOC operates that people should be aware of?

 

Leslie Silverman:

Yeah, I mean, and again, this may be a little inside baseball again, but it also affects what happens on the outside. And this may be an area where Jenny and I differ just slightly, but last January, the commission made another significant institutional change when it voted to substantially pull back the “litigation authority of the general counsel.” The commission began delegating significant authority to authorize litigation to the general counsel during the Clinton administration, so back in 1995, and that delegation has been modified over the years. But the result was that the commissioners themselves only voted for a relatively small percentage of EEOC lawsuits, and the definition of what we voted for depended on the administration, I’d say, and the changes. And I’ll admit that this bothered me when I was a commissioner because Congress did give the commissioners the authority to decide whether to commence litigation, and I wanted to see the cases.

Sometimes I didn’t get to see them at all before they went forward and to deliberate them and vote on the cases. So I favored pulling back some of the delegation even back when I was at the commission, and that hasn’t happened exactly. But this January, the change goes so much further with very limited exceptions. The commissioners will now be involved in authorizing most commission litigation. And Jenny, I suspect, as I said, you probably have a different point of view on this, although maybe you appreciate that minority commissioners do get a vote.

 

Jenny Yang:

Yeah, I’ll say, so it was during the Clinton administration that that delegation was first undertaken. I thought it was helpful because it allowed for more efficient operations, so where cases were within the policy the commission already set, the commission entrusted to its general counsel and the career field leadership to file those cases, and I did not think it was necessary to vote on every case. However, I agree with you that sometimes it was forgotten that that authority is really the commissions to begin with. And I think it’s important that where the commission wants to know about a case, wants to see amicus briefs and other things, that that information is shared. So I do think there’s an opportunity for increased coordination to ensure that the commission has access to all the information, but I do think that delegation is important for efficiency, and so that allowed us to protect more workers.

 

Leslie Silverman:

Another change that the commission has made over this last year, and it started based back in January, at a January 22nd public meeting, Chair Lucas and Commissioner Pannuccio voted to rescind the commission’s 2024 enforcement guidance on harassment in the workplace. Commission has lots of guidances out there. That guidance was one of the commission’s newest major guidance documents, and it brought together and updated the commission’s interpretations of the legal standards governing workplace harassment, replacing a number of older guidances that dealt with harassment in different forms. And the project itself had a really long history at the commission. It was a bipartisan commissioner task force that put it together. And I really did expect this commission under Chair Lucas to revisit portions of the guidance, particularly those on addressing gender identity and other issues. But what I didn’t expect, what surprised me was the decision to rescind the guidance in its entirety.

And there was something else about that discussion that really caught my attention at the time. Chair Lucas and Commissioner Panuccio questioned whether portions of the harassment guidance effectively amounted to substantive rulemaking, because of course, Title VII, unlike some of the other statutes EEOC enforces, it does not give the EEOC, the commission, the authority to issue substantive regulations under Title VII. So what concerned me about that argument was the potential reach, because I think the commission’s guidance is really important, and I don’t think it purports to have the force of law. Rather, what it does is it sets out what the commission’s interpretation of the law is. And it talks about the case law interpreting it. It tells employers and it tells employees, it tells courts and the commission’s own staff how the agency interprets and intends to enforce the statute. So the idea that that was going to be changed and what was going to happen in the future, I really took notice.

 

Matt Greer:

Yeah. And it sounds like those have been rescinded, was the term I believe I heard, which sounds like that means they’re gone essentially at this point. But I don’t know, Jenny, do you have a view about that guidance? And I’m guessing most of our listeners, if they have had exposure to EEOC, they probably have been familiar with some of those guidance documents and what’s been lost now that those have perhaps changed or gone away.

 

Jenny Yang:

Yeah, I think it’s a huge loss. That guidance is something that we worked on for a very long time, including in my tenure, and we ensured there was a opportunity for public comment. And in fact, we extended it based on requests for more time to provide that feedback. And the rescission of the guidance does not mean anything about how the laws change, and it still can be a source of compelling interpretation that I believe employers can continue to point to because it was never binding in the first place. That’s the point of the guidance. It was the EEOC’s interpretation. I have heard from a number of states that they’re interested in issuing a similar kind of guidance to help employers and workers in their states as well. One thing I will mention is that a group of former EEOC commissioners, general counsels, legal counsels, and others have come together.

We are a nonprofit, all volunteer called EEO Leaders. We have a website at eoleaders.org where we have issued a number of resource documents explaining our view of the law and highlighting ways in which we think this administration is departing from it. And we do have a document on why EEOC’s enforcement guidance is harmful to employers dated on January 20th that explains the importance of that guidance as well as the broader effort of this EEOC to suggest that notwithstanding six decades of practice of issuing interpretive guidance under Title VII, that the agency somehow no longer has the authority to do it or never had the authority to begin with. The commission has issued a compliance manual for its investigators over the course of its history so that the investigators knew what the commission policy was and could apply it consistently in their investigations. The commission decided to be transparent and share that guidance with the public so that the regulated community could understand the commission’s view of the law.

That is what the guidance is. Guidance is voted on by the commission and it does not purport to be mandatory. We’re very careful not to use any kind of should, must type of language. It was designed to provide a clear and consistent interpretation of how the commission understood the law so that it could help people comply. And that I think is a real loss seeing the EEOC now depart from this well-settled practice that the Supreme Court has cited to this guidance favorably over the course of decades.

 

Leslie Silverman:

And to be clear, so far the EEOC has only withdrawn the harassment guidance, but the way the language is around the withdrawal and what we’ve seen since then suggests other guidance documents will follow. And let me just add, as a counselor to employers, I will turn to these guidance documents. I also do monitoring in some EEOC settlements and it really kind of sets, this is how the commission is going to view these issues. And I think that’s important. And sure, there are variations state to state, and you’re going to make determinations as you bring your client’s position forward to the commission or in my monitoring, but it really kind of level set issues. And harassment is a complicated subject and it was helpful.

 

Jenny Yang:

And Leslie, if I could just qualify that statement just a little bit. On June 30th, the commission voted two to one to rescind a longstanding guidance and compliance manual section on the limited circumstances when employers can use voluntary affirmative action programs that’s under Weber Johnson. So that was another guidance that we’ve seen rescinded.

 

Matt Greer:

Okay. Yeah, keep an eye out. I’m sure it sounds like there’s going to be more down the road.

 

Jenny Yang:

Yeah. And we have a July 2nd EO leaders document explaining that affirmative action guidance because employers can continue to rely on it during the time that it was in effect because it does provide a safe harbor and so the rescission doesn’t change the ability to rely on it for actions taken in reliance on it.

 

Matt Greer:

Great tip there. So we’re about halfway through our time. I wanted to take a quick break here and give a chance for an update to our listeners about some upcoming opportunities at the ABA Labor and Employment Law Section, including the upcoming conference. And then when we come back, I know we wanted to delve into some other topics that are coming up, some areas people may have heard about, including the reporting requirements that are changing in the EEO1 piece and perhaps what’s happening on the DEI front people might be aware of. So let’s take a quick pause and we’ll be right back. All right. Well, as we come back, I’m sure many of our listeners have been hearing about DEI, diversity, equity and inclusion pieces and some of the changes that are happening on how those policies are treated at the EEOC. So I don’t know, Leslie, do you want to fill us in on what’s going on on that front?

 

Leslie Silverman:

Sure. And I’m going to take a step back on this as well, a quick refresher on where we are. Almost immediately after taking office, President Trump issued an executive order directing federal agencies to combat what the administration was calling illegal DEI in the private sector. And the EEOC moved very quickly in that direction. Last year, 2025, in March, the then acting chair, Lucas, sent letters out to 20 major law firms seeking information about the law firm’s DEI-related employment practices. Around that same time, EEOC and DOJ issued what they called technical assistance explaining their view of when DEI programs may violate Title VII. Now, none of that changed Title VII. Race discrimination and sex discrimination were unlawful before the executive order and they remain unlawful, but it did send a very clear message about what this administration and this EEOC would be looking for and how they would be looking at DEI programs.

And now as we’re into this new year and we have the commission that can vote on cases and everything else, we’re seeing that move from sort of a shifting policy and issuing technical guidance to enforcement. In February, the commission issued a lawsuit against Coco Cola Beverages of Northeast, a bottler, challenging an employer sponsored networking event that was open only to women. EEO’s theory is pretty straightforward that the company provided women an employment opportunity or benefit that it denied to men because of sex. And if this case does not settle, it could provide an interesting test of Muldro and what the Supreme Court meant by requiring some harm to violate Title VII, some harm to the terms and conditions of employment. Here in that case, the alleged harm is essentially being excluded from a two-day employer sponsored networking event. And since then, we’ve seen the commission pursue a couple of other DEI related theories.

In May, EEOC sued the New York Times, and that case is somewhat different. EEOC alleges that the Times denied a promotion to a white male employee because of his race and sex. And it points to the company’s stated DEI goals concerning representation of women and people of color in leadership in supporting that claim. I mean, there are pages and pages of the complaint that have general DEI language, and then it really boils down to a single employee claim. And just last week, EEOC sued Washington University in St. Louis in a case involving a Black employee who was allegedly separated from white colleagues during a mandatory DEI training and then fired after complaining about it and filing an EEOC charge. So there, interestingly, the alleged victim of the DEI-related discrimination is a Black employee. And we’ve also seen the commission use its investigative authority very aggressively.

The most prominent example was against Nike. Chair Lucas filed the commissioner’s charge alleging systemic discrimination against white employees and applicants, including Nike’s DEI programs. Now, we in the public would not necessarily know about that commissioner’s charge because all charges are confidential under Title VII, except that earlier this year, the dispute ended up in a subpoena fight and the EEOC went to federal court to enforce the subpoena, seeking extensive information about hiring promotions, layoffs, internships, mentoring, and leadership programs, and Nike’s use of race and ethnicity data. And what is unusual is the commission even issued a press release on the subpoena enforcement, which it hadn’t in the past, but it often got covered in the labor and employment periodicals. So the subpoena litigation was dismissed just last week after Nike produced the requested information, but most importantly, the underlying EEOC investigation is continuing. So I think we’re really in a very different position than we were a year ago.

 

Matt Greer:

Yeah, I’m curious. Again, I’m sure a lot of people have been hearing about DEI and some of the things that you just outlined there, Leslie. I appreciate that. I mean, is the takeaway that maybe employers, should they be thinking about those programs in a different way now? I mean, you also mentioned that ultimately the law has not changed, but obviously some of these dynamics might cause some people to think about that in a very different way. Do you have any kind of thoughts for folks about today’s DEI policies and what they might be thinking about?

 

Leslie Silverman:

I think most employers are looking at these issues differently than they were a year and a half ago, and I think many have made changes in their programs to comply with the view that you can’t separate people, groups have to be opened to everybody. I mean, you can’t provide special programs or trainings for a certain segment of your population based on these demographic issues. I think there’s been a Massive change. I don’t think that these enforcement decisions means that you can’t have a DEI program. I mean, a lot of companies no longer want to call it a DEI program, but I think there’s a lot of community and culture built into these programs and it would be a shame to lose all of that.

 

Matt Greer:

Thanks. Yeah, I was curious your thoughts on that. And Jenny, I was curious if you had anything on the DEI front. I know we also wanted to cover a couple other topic areas, but wanted to give you a chance if you had anything to add on to the DEI piece.

 

Jenny Yang:

What struck me about the EEOC’s decision to file their first lawsuit challenging a diversity equity inclusion program against Coca-Cola is the issue that they chose to focus agency resources on. Traditionally, the EEOC has thought carefully about how it can leverage its very limited resources on issues that can impact many workers on significant harms that they face. And to pick a two-day networking opportunity as a signature case filing after looking for a case for a long time actually signified to me that they didn’t have stronger vehicles to try to make these messaging points that they’re trying to message. They are really stretching… They’re going to test the bounds of Muldrow, as Leslie mentioned, to see whether this actually constitutes some harm that is actionable as discrimination. Can

 

Matt Greer:

I pause you there? I want to put a plugin. Actually, one of our earliest podcast episodes was on Muldrow. So I just want to put it out there. It was a Supreme Court case from not too long ago. And if folks are curious, when that case first came out, we actually did an episode on that.

 

Jenny Yang:

Oh, good. Thanks for flagging that, Matt. I think that could be useful because by and large, the law has not changed. That is one area where the Supreme Court has issued a clarification. Some courts were already interpreting Muldrow to protect that kind of transfer that was at issue, others were not. So I think that is one area where I am watching that evolution. But I do want to say that the EOC has worked to protect white individuals as well as males during my tenure in the Obama administration, after and before. So I think it’s important that everyone understands that everyone is protected by Title VII, and that’s really one of the beauties of Title VII. Everyone is protected based on race and gender, and the EEOC brought those cases during my time where we saw those violations. I

 

Matt Greer:

Think that’s a good reminder. Yeah, I’m sure we could probably spend a whole episode talking through all the DEI stuff, but given our time, I wanted to transition, and Jenny, maybe while it’s with you, I know there have been some changes recently in the reporting requirements that have come up. Some folks may have been familiar with certain reports like the EEO1 Report. In my previous career, I worked in human resources where I was charged with gathering that data and preparing those documents. So I have a personal memory of those pieces, but there have been some changes there. So I don’t know, do you want to give us an update about what’s happening on that front?

 

Jenny Yang:

Yeah, absolutely. I know this issue is top of mind for both employers as well as the civil rights and workers community right now, because there’s a lot of uncertainty about EEOC’s recent proposal to rescind its entire set of data collection that it has been collecting for 60 years. Employers with at least a hundred employees in the private sector or 50 for federal contractors. This was a joint collection with the Office of Federal Contract Compliance Programs at the Department of Labor, which I also led during the Biden-Harris administration. And this data reported aggregate workforce demographic information by job category, service and maintenance workers, craft workers, first line managers, as well as race, ethnicity, and sex. And it was a powerful set of consistent and standardized data for enforcement agencies to identify where problems may exist that warrant further investigation. So at EOC, our investigators had this data set on their desktop.

When somebody came in with a charge of hiring discrimination, they would pull up that employer’s data to see whether the individual’s evidence was supported by broader workforce patterns. And that could be a reason why amongst the 90,000 charges that came in a year during my time, the investigator might prioritize that particular charge for further investigation to determine whether it might be a broader systemic issue facing a large number of workers that would be a good use of federal government resources. You don’t make a federal case over every violation, unfortunately, because you don’t have sufficient resources. And that is the purpose of the data. But on July 21st, the commission voted to propose eliminating that requirement as well as other data, similar data requirements for state and local governments, for unions, public school systems and others. And it’s still a proposal. The commission held a public hearing on August 11th and there’s testimony that can be reviewed.

The comment period closed on August 24th. So the agency will consider those comments before finalizing any proposal for rescission. And even if that reporting requirement were to be rescinded, I do want to highlight that there are compelling reasons for employers to continue to collect and analyze that demographic data. For decades, employers have collected from their employees, and they also should be doing this of their applicants, the demographic data. Now the EO1 data is quite aggregated, but employers use that demographic information to conduct much more refined analyses of their own workforce practices from hiring to pay to promotion as well as leadership opportunities and other things. So employers should continue to collect that information and do that more refined analysis because that is critical to identifying possible discriminatory barriers and fixing them before they become a problem. So that’s one of my largest concerns is that employers might become confused and think that now that EOC is moving to no longer require the data, that somehow they shouldn’t be collecting and analyzing the data.

And there are very good reasons why they should continue to do

 

Matt Greer:

That. Great perspective. And sounds like you’re assuming it’s a foregone conclusion that that will probably be rescinded, but it sounds like we’ll keep an eye on that as well in the future.

 

Jenny Yang:

Yes. I mean, we don’t know. I don’t mean to suggest that it’s a foregone conclusion because I actually think there are many strong reasons to continue it from an enforcement perspective. And also it was used by employers. The EOC would publish the aggregate data on its website and employers would use that to benchmark. So it was also a very helpful set of data for employers to understand are we missing talent compared to similar employers in our geographic area? Maybe we need to rethink how we’re recruiting. So that data had many purposes. Researchers used that to help identify patterns of occupational segregation and to help inform the field to better understand how we address discriminatory barriers.

 

Matt Greer:

I’m curious, Leslie, from your perspective as an employer side person, do you share that perspective on the value of that data? And would you also share that best practice of continuing that regardless of what the requirement might be?

 

Leslie Silverman:

Well, I mean, the collection of information to be able to comply with the law and to protect yourself against claims is in Title VII. It just doesn’t expressly say EEO1 data. It gives the commission the right to require reports, which the commission did since 1964. And one of my initiatives when I was at the commission was the systemic initiative, which put that systemic function on the map nationwide for the commission. It was doing it in pockets before. And we found, and I still find today, the EEO1 data form is not a perfect data collection. It could be better. It had moved over the years. It had changed. I voted on some changes to the EEO1 shortly after I got to the commission in 2000 and I think two or 2003. But what it did is it gave us an ability at the commission and employers the ability to compare, well, for the commission to compare employer to employer and year to year.

And with that being gone, yes, I still think employers should collect this information, but only if they’re going to use it and they should be using it, they should be looking at whether there’s barrier issues and doing other more sophisticated analysis with this data.

 

Matt Greer:

All right. I know we have about five minutes left in our episode and I wanted to make sure that we covered another kind of hot topic area that’s been coming up, and that’s the changes in the disparate impact theory of discrimination. So Jenny, I guess, would you mind taking the lead on that and kind of reminding us what disparate impact even means for listeners who maybe haven’t heard that in a while and what’s been going on? What are some of the changes that are happening on that front?

 

Jenny Yang:

Yeah, absolutely. This is one of the areas where we’re seeing this administration depart dramatically from longstanding precedent. So for more than half a century, our civil rights laws have protected workers from unjustified practices, hiring, pay, promotion that exclude people because of race, sex, age, or another protected characteristic because discrimination today often is not announcing itself, but this is a legal protection that recognizes that sometimes discrimination is built into a system that might look neutral on paper, but disproportionately screens out or disadvantages qualified people for reasons that have nothing to do with whether they can do the job. So the law asks employers a simple question, is this practice actually job related? If it is, employers can use it. If it’s not, the law asks employers to use more job related practices so they are not excluding people with an arbitrary barrier. And so what we’re seeing now is that EOC as well as the broader federal government is not only moving away from its historic role of enforcing anti-discrimination laws affirmatively on behalf of all communities, but there’s also this concerted effort to roll back longstanding civil rights protections.

And that is deeply concerning because disparate impact protections help expose hidden barriers and it does not require quotas or racial balancing or any kind of lowering standards. It’s asking employers to make sure that they are screening people based on job related characteristics. And that actually advances merit, which this administration has focused on. And it makes sure that employers aren’t excluding people for reasons that have nothing to do with whether they can do the job. This matters now because the president in April 2025 issued an executive order directing agencies to eliminate disparate impact liability in all contexts to the maximum degree possible. We saw EEOC withdraw from its one disparate impact case against Sheets alleging race discrimination in its use of a criminal history screen. Our firm has moved to intervene to represent workers on those claims. On June 9th, the Department of Justice’s Office of Legal Counsel issued an opinion at the request of the EEOC chair, which concluded that EEOC’s longstanding interpretation of Title VII disparate impact is unconstitutional to the extent it permits liability without circumstances strongly suggesting intentional discrimination.

And DOJ advances this categorical assertion that employment selection practices should be presumptively job related and that only practices with no plausible job relatedness can create liability. And that is deeply concerning because it’s inconsistent with longstanding precedent as well as the Civil Rights Act of 1991, which codified the disparate impact doctrine that the Supreme Court first recognized in 1971 in the Griggs versus Duke Power case. So even though EEOC has historically brought most of its cases under disparate treatment theory, because often that can be easier to prove. I’m back in the plaintiff’s class action bar and many of our class actions bring both disparate impact as well as disparate treatment cases alleging pay discrimination, hiring discrimination and other practices. So those theories, even though the government is backing away, remain on the books and actively litigated. So employers really need to ensure they are continuing to do the work of collecting the data, doing the analysis, particularly as AI becomes increasingly used by employers to screen and evaluate candidates and disparate impact is one of the most significant guardrails to prevent against discrimination in the use of AI and similar automated decision screens.

 

Leslie Silverman:

I just wanted to add in here, many of the EEOC’s cases, most of them that deal with the disparate impact, they actually often bring it under a pattern and practice kind of analysis where they do include that theory, but they also include some disparate treatment elements of it. So there hasn’t been a huge change. They only withdrew from one litigation, but for example, any kind of employment test and AI, those types of tools are effective.

 

Matt Greer:

Yeah. Another plug for an episode that I think just came out right before folks listening to this one on the podcast, there was a discussion about all the tools that are being used in the hiring and employment practices generally that are AI related. And it was definitely eye-opening for me and touches in on some of these pieces that was kind of fascinating to hear about.

 

Jenny Yang:

And if I could just mention our EO Leaders Group does have a piece on our website responding to this DOJ memo in depth. And I do think employers would have significant litigation risk relying on DOJ’s position because it is not well-reasoned, does not have strong support, and I think will not garner credibility with the court if an employer is citing to it as sort of this policy position rather than established legal authority.

 

Matt Greer:

We are getting very close to the end of our time. I wanted to take a moment just to, again, thank you both for being here. We’ve learned a lot. There is a lot to cover here, obviously. I’m guessing we might need to be doing a follow-up episode here on some of these topics as things develop. But before we close out, I did want to turn it back to you both. Do you have any kind of high level tips for the practitioners who are out there listening to this who are obviously not as knowledgeable in these areas as you are, but some tips for people who are handling these, trying to navigate the waters of all this changing landscape? Do you have any kind of tips that you would close out with?

 

Leslie Silverman:

I’ll go first. I mean, I think that one thing you can say about the EEOC leadership right now is it’s fairly transparent and things are changing. And if you practice in this area, you can’t put your head in the sand. You really have to pay attention because the commission is very much seeking to advance charges and to litigate on the priority issues. And so I think it’s really important to pay attention.

 

Matt Greer:

An Jenny, what do you think?

 

Jenny Yang:

Sure. I’ll say whatever direction federal policy takes, employers need to continue to look at governing statutes and controlling case law and recognize that there are risks on all sides. The risk of an actual enforcement action filed in court by federal agencies is fairly low, but I know many employers are having to respond to very broad information requests to them on charges that may be very weak and that can be time-consuming. But employers need to recognize that there are risks of discrimination if they pull back from longstanding practices designed to promote equal opportunity for all and create a culture of inclusion for workers. They can’t be afraid to hear from workers where there may be problems, where there may be concerns about changes that may have been made to efforts to advance equal employment opportunity, because often people become afraid. They just shut down, they don’t want to talk about these issues, and we need to have practices as well as skills that enable people to have productive dialogues on issues that may be hard.

 

Matt Greer:

Yeah, thank you both. That’s really helpful. I have a nice note to end on here. So thank you again, both of you, for taking some time to talk with us and share your wisdom.

 

Leslie Silverman:

Thank you for having us.

 

Jenny Yang:

Thanks so much for having us. Appreciate it.

 

Matt Greer:

Yeah, thanks. And I also wanted to do a quick thank you to our listeners as well for taking the time to listen and hope you found the episode as informative as I did. And if you did, make sure to share it with your friends and give us a like on your favorite podcast player. Thank you very much and talk to you next time.

 

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