EEOC is prioritizing Trump's culture war over good policy, former lawyer says

The Equal Employment Opportunity Commission wants to get rid of a provision that requires certain private businesses to collect data about who they hire.

Those companies have had to submit information, like the race, sex and ethnicity of their workers. That data helped firms see if certain populations of people weren’t being hired or promoted.

But under the proposed change, that data collection would end. NPR reports it has been submitted to the White House for review.

David Lopez is a former general counsel of the EEOC. He’s currently a distinguished professor of practice at Arizona's State University Sandra Day O’Connor College of Law and the founder of the school’s Civil Rights, Migration and Workplace Law Initiative.

He said you have to look at these changes in the context of what’s going on both at the EEOC and more broadly within the federal government, with regards to civil rights.

Full conversation

DAVID LOPEZ: The EEOC, when I was there, was a bipartisan, deliberative, policy-making body, very inclusive in terms of reaching out to stakeholders, reaching out to the business community, the civil rights community and career staff. And now what they’re doing is they’re basically functioning as a passthrough for administration, what I would call like almost like culture war priorities. And they say as much.

MARK BRODIE: What kind of data did the EEOC collect that they’re proposing to no longer collect?

DAVID LOPEZ: Yeah, I mean, what the EEOC would do is private sector employers over a certain size had to list the number of people who were employed in different job categories. And these were very rough, very general job categories, right? And then you would identify how many people are employed in each category by race, by national origin and by gender. And then this information was often used by social scientists and sometimes by the EEOC cumulatively to understand job patterns.

MARK BRODIE: Well, is it right to say that the data itself would not necessarily trigger an investigation if there was a complaint, but it was data that investigators could use to look into whether there was a problem?

DAVID LOPEZ: Yeah, it’s a tool, but it’s not — the data is too raw to be dispositive. And so, even if you had an employer that said, “Hey, there are zero women in this technological job category out of, you know, 50 employees,” that itself is not enough. Like, you need to do I think a more refined statistical analysis to demonstrate discrimination.

But if you saw that, that’s a little bit of a green light, like, “Hey, maybe I should look at this a little bit more.” And that’s what the data’s been useful for. Like, employers are like, "Hey, wait a second. Does this present a problem?"

It’s not a silver bullet, and I think for litigators like myself, who like to dig deep into the granulated numbers, we always wish that we had more. But not to have it at all just really is a retreat in terms of the historical mission of the agency.

MARK BRODIE: Yeah, so what will we lose by not having this data, assuming that this rule goes into place?

DAVID LOPEZ: I mean, I think both what the agency will lose and what the private employers who collect the data will lose is the ability to assess whether there may be discriminatory barriers in the way that they hire and promote employees, right? And part of this is sort of the philosophical idea that to talk about race at all means that you’re necessarily going to lead to discriminatory hiring, right?

But I think the other view that many people in the civil rights community hold is that by eliminating this, you basically freeze in place and eliminate any enforcement mechanism that’s designed to eliminate discriminatory barriers. A lot of this seems to be predicated on, “Hey, we don’t need to ask these questions anymore. We don’t need to use these mechanisms,” and it’s part of a broader agenda.

So, the EEOC also very early on announced that one of its big priorities is to address DEI. And they said it. Like, this is not me. This is the chair of the agency saying, “If you’re a white male and you believe you’ve been discriminated against, come in and file a charge with the agency.”

Of course, that’s always happened, but for some reason, because this was a national priority, the chair used extremely finite resources to make this a priority.

MARK BRODIE: There had been some concerns about the data being misused in some ways. Was that a concern that you share?

DAVID LOPEZ: Yeah, I mean, I, I think, um, having been at the agency both in the field and at the political level and having been part of many trainings, they’re basically taught, ”Hey, this is not going to be the be-all and end-all. Like, this isn’t going to make a case.”

MARK BRODIE: It’s a data point, not the data point.

DAVID LOPEZ: It’s a data point, exactly. And, you know, the thing — one thing I’ll say about the lawyers at the EEOC, having been one, what they’re looking for is they’re looking for good cases. They’re looking for cases of — that they view as are righteous, and they want to judge those based on the facts that are before them.

So, if you have like a company that says, "Hey, we, they haven’t hired EEO-1 says they haven’t hired women, um, in, you know, a tech job, that alone, um, for the attorneys at the EEOC — and there’s multiple layers of review — that would be enough to go to court.

They wouldn’t do that. They wouldn’t take that case just because of that. They might look a little bit deeper, and they might find out, “Hey, but wait a second, you know, for these particular jobs, there aren’t that many women candidates,” right? Or there were women candidates and they didn’t, you know, and they were made job offers, but they didn’t go. Like, there’s a lot of nondiscriminatory reasons you can use to explain, you know, these sort of disparities.

MARK BRODIE: I want to read you something that the head of the EEOC said recently, and she said, “The way to stop discriminating based on race is to stop discriminating based on race, the end.” I don’t want to get into, you know, what exactly she was thinking when she said that, but what do you think of that, especially as it relates to some of these changes that we’re seeing potentially at the EEOC?

DAVID LOPEZ: I mean, what she’s doing is she’s quoting Chief Justice (John) Roberts in a school desegregation case. So, that’s not her own quote. And I assume that she she didn’t try to not quote it and not attribute it. And what she’s doing is she’s trying to like, “Oh, well, that also applies to employment.”

Like, you can’t have these policies that will give preferential treatment to Black workers over white workers, or women over men. But you know what I say to that? That’s a duh. Like, that’s a case that was decided in 1973 that said that white men could bring claims under Title VII. So, for her to say that like it’s some like grand revelation instead of like 50 years of case law, I think is intellectually dishonest.

And what’s happening now is that you’re trying to — that, you know, this whole effort to like, you know, vilify and stigmatize diversity, equity and inclusion is sort of like the suggestion that lesser qualified people are being hired or promoted. If they are, that’s against the law, right?

But if you’re asking yourself the question, “Hey, why don’t I have Black workers here?” maybe it’s because you’re not recruiting at certain sources, right? Or maybe because you have selection devices that have nothing to do with the job. Or maybe because there are are managers in there that are engaging in deliberately discriminatory behavior. But if you don’t have the data, you don’t have the tools, you’re not going to ask questions.

And the reason this is really important now is we’re in the age where you have these emerging technologies that screen employers, recruit employers, you know, help hire employers, right? And if you don’t have the tools and the data to say, “Hey, what’s going on with that?“ what you’re going to end up with are, you know, employers that are like all male.

If you don’t have the tools to dig deep and say, “Hey, you know, maybe this algorithmic selection has built-in biases,” if you don’t have the tools to even ask the question, you’re never going to be able to figure out what’s going on.

MARK BRODIE: All right. That is David Lopez. He’s the founder of the Civil Rights, Migration, and Workplace Law Initiative at ASU’s Sandra Day O’Connor College of Law, also the former general counsel for the Equal Employment Opportunity Commission. David, thanks so much.

DAVID LOPEZ: Thank you. My pleasure.