It’s not surprising a national legal nonprofit would allege in late 2023 that NASCAR had a diversity problem: Of the 42 drivers on the entry list for the 2024 Daytona 500, for example, only one was Black and zero were women.
But that wasn’t the diversity issue that America First Legal (AFL)—a group founded by Stephen Miller, a senior Trump official and a mastermind of the infamous child-separation immigration policy—had in mind. Rather, in an 8-page letter sent to the Equal Employment Opportunity Commission (EEOC) requesting a formal investigation, the conservative organization accused NASCAR of “ongoing, deliberate, and illegal discrimination against white, male Americans.”
It was one of at least 20 letters Miller’s group sent to the EEOC seeking the nonpartisan government agency investigate an employer’s diversity, equity, inclusion, and accessibility (DEIA) policies for discrimination against white, male, or heterosexual people. Other targets, deemed “woke corporations” by AFL, included Nordstrom, Major League Baseball, Tyson Foods, Anheuser-Busch, Morgan Stanley, and several major airlines.
The EEOC has not (yet) pursued lawsuits against these companies for the discrimination charges alleged by AFL, but that was the old EEOC—before Trump named Miller his deputy chief of staff for policy, fired two of four EEOC commissioners, and appointed an anti-DEIA enthusiast to be its acting chair. The new kids in town may very well use the complaints authored by Miller’s group as a blueprint for future, but meritless, EEOC charges.
In the last few weeks, the MAGA-fied EEOC has already added a unique code for DEIA-motivated discrimination to its internal complaint system; EEOC staff have been told to prioritize complaints from workers who allege they faced discriminated for being American-born or part of a non-minority group; and Trump’s new acting chair, Andrea Lucas, has sworn to prioritize “rooting out unlawful DEI-motivated race and sex discrimination.”
These efforts are seemingly designed to hijack the EEOC’s mission from one that aims to protect the equal rights of people who are marginalized, to one that seeks to punish companies for making modest efforts to level the playing field on their behalf.
“This administration is signaling a receptivity to challenges to DEIA programs that may encourage people who feel that they have been subject to discrimination as a result of those programs to seek to vindicate their rights through the EEOC,” Jocelyn Samuels, one of the EEOC Commissioners recently fired by Trump, told Mother Jones.
Many of AFL’s requests to the EEOC cite the 1954 landmark Supreme Court case Brown v. Board, which unanimously concluded racial segregation in public schools was unconstitutional. Segregating children by race “may affect their hearts and minds in a way unlikely to ever be undone,” then-chief justice Earl Warren wrote in 1954. The court-written syllabus to the decision specified that segregating children by race “denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment.”
But in its complaint against NASCAR, AFL twisted the court’s logic to argue NASCAR’s marketing of select internship and early-career opportunities to applicants representing diverse backgrounds generated a “feeling of inferiority” among white men that may “affect their hearts and minds in a way unlikely to ever be done.” (Presumably, AFL meant to write “undone,” but misquoted the landmark decision.)
The EEOC was born out of the Civil Rights Act: a bill championed by president John F. Kennedy after the peaceful Birmingham protests and then signed into law by president Lyndon B. Johnson in 1964. The legislation banned the relegation of minorities to segregated public facilities and established the EEOC to enforce penalties against companies that discriminated against employees on account of their race, color, religion, national origin, or sex (which was interpreted by the Supreme Court in 2020 to include sexual orientation and gender identity).
Among other monumental wins, the relatively small agency successfully fought the practice of separating “Help Wanted” newspaper advertisements by gender, and outlawed the once-routine protocol of firing women once they married.
But since Trump’s inauguration, the EEOC’s leadership and at least part of its aim has changed. Staff have been told to stop pursuing cases about gender identity, and the agency has even gone so far as to file motions to dismiss obvious discrimination lawsuits that were already well underway. Employees also say there is a new emphasis around investigating “DEI-motivated” discrimination complaints, even though the vast majority of complaints submitted to the EEOC pertain to discrimination against what are traditionally considered minority groups, including Black and Hispanic people, pregnant people, and people with disabilities.
“I intend to dispel the notion that only the ‘right sort of’ charging party is welcome through our doors,” Lucas said in a press release announcing her promotion.
Towards her stated mission, AFL’s allegations are instructive. Miller’s group alleged, for example, that the National Football League (NFL)’s “Rooney Rule” discriminates against qualified prospective white coaches by requiring teams also interview diverse applicants. Teams engage in “sham interviews with minority candidates solely to check the Rooney Rule box,” AFL explained. “Given the limited timeframe to hire executives and coaches after the season, this results in fewer opportunities for similarly situated, well-qualified candidates who are not minorities.”
Additionally, AFL said that by offering pregnant employees in abortion-banned states benefits to travel for abortion care, Lyft and DICK’S Sporting Goods were discriminating against pregnant employees who carry their pregnancies to term. “Although Title VII prohibits discrimination based on childbirth, DICK’S does not offer an equivalent paid benefit to a mother who has her baby,” the group said. (It’s worth noting that Lyft and DICK’S offer a different benefit—several weeks of paid leave—to new parents.)
Historically, most EEOC cases are initiated by employees who personally face discrimination and then file complaints with the EEOC, which are then investigated by EEOC staff who sometimes bring the cases to court. But Lucas can personally launch her own investigations, based on news reports or letters from groups like AFL, too. These independent endeavors are called Commissioner Charges, and Lucas filed more of them (38) than any of her six fellow commissioners (they averaged 11) in fiscal year 2024.
Moreover, the Supreme Court is on the precipice of emboldening Lucas to punish companies alleged to have made “woke” decisions on new hires and promotions. On Wednesday, the court heard oral arguments in a case in which a straight woman claimed her gay supervisor passed her over for a promotion in favor of a lesbian, and demoted her to an inferior role with a gay man taking her place. (Heterosexual employees made the personnel decisions and also had concerns about the plaintiff’s leadership skills, the employer’s lawyers said.)
If the court sides with the plaintiff, non-minority plaintiffs alleging what is colloquially known as “reverse discrimination” will no longer have to meet a heightened burden of proof when making these claims. Legal analysts at the New York Times and SCOTUSblog predict the court will rule in the plaintiff’s favor.
The accusations AFL made about DEIA programs are unlikely to result in courts finding that non-minority groups actually faced discrimination—even if the EEOC formally puts its weight behind them.
“The kinds of DEIA programs that most employers are pursuing are fully lawful, effective, and necessary to identify and address the barriers that are still preventing people from achieving equal employment opportunity,” says Samuels. “I think it is a misrepresentation of the nature of the law, and the standards that courts have applied now for decades, to assert that an employer’s commitment to DEIA activities necessarily demonstrates that the employer has engaged in impermissible race-based decision making.”
Still, the mere act of launching EEOC investigations into DEIA practices could cost companies time and legal expenses, ushering in a chilling effect in the corporate world.
We’ve already seen companies play anticipatory defense. Major employers, from Chipotle to Google, have removed or softened information about diversity policies from investor reports and public-facing materials. Federal employees also tell Mother Jones their identity-based employee resource groups have been disbanded.
“Even well-constructed DEI programs could run some risk for your organization,” a leading employment-law firm, Fisher Phillips, posted in a new guide. Increased risks under the Trump administration include “discrimination lawsuits alleging DEI-related unlawful discrimination from employees who feel disadvantaged” and “scrutiny from federal and state agencies such as the EEOC.”
In the meantime, conspiracies about mistakes being the result of DEI or DEIA initiatives have proliferated: Social media was abuzz with misinformation that the Delta plane flipping over in Toronto amid bad weather conditions was a result of an ill-prepared female pilot. (The incident is still under investigation, but the aircraft was captained by a man.) After Trump was grazed with a bullet in Butler, Pennsylvania last summer, similarly unfounded rumors spread about the qualifications of a female Secret Service agent.
On the surface, Lucas’ stated mission is to ensure nobody is subject to the extremely rare act of discrimination against white, male, heterosexual, cisgender, or American-born citizens. But the subtext is that anyone from outside of these categories receiving a coveted role can only be thanks to DEI policies.
God forbid a woman earns a pit-crew internship at NASCAR.
If you are a federal worker with more information about DOGE or Trump’s attacks on DEIA, you can reach out to Abby anonymously at @abbyvesoulis.09 on Signal.
