In the Face of Regressive Civil Rights Discourse and Procedure

The administration has largely halted the EEOC's traditional contracting and Civil Rights enforcement work; significantly reducing federal oversight of discrimination complaints involving government contractors.  Executive Order 11246, which required affirmative action for federal contractors was revoked by the President via Executive Order 14173. This comes at a time when the country’s civil discourse, is heavily weaponized by Administration leadership and runs concurrently with its deregulation policies. Some argue that eliminating or shrinking EEOC’s enforcement role, will leave millions of workers employed by federal contractors, with fewer avenues for redress when discrimination occurs. Others contend that prior enforcement efforts have become overly burdensome or ideologically driven, and that federal civil-rights programs require restructuring to meet the needs of the current landscape.

Government and media narratives suggest that holders of federal contracts “should expect a major shift in compliance expectations rather than aggressive federal audits and enforcement focused on workforce demographics and affirmative-action obligations.” The changes are a harbinger of non-evidence-based, anti-discrimination oversight (after charges are brought), effectively reducing past, present and future applicability of any baseline accountability to argue cases.  At the same time, changes will increase the cost of evidence gathering in these suits.

Compliance executives across sectors are being advised that documentation of objective, job-related selection criteria and consistent decision-making is more important than ever and that statutory anti-discrimination obligations are still very much alive - but the federal government's expectations regarding affirmative action, utilization goals, data collection, and DEI-related practices - have shifted substantially. The approach is being parlayed as reduced regulatory burden that eliminates labor-based ‘race profiling’ and not surprisingly, the inconvenient scourge of related DEI-related federal mandates and activities.  

From what I understand, the EEOC cited Ames v. Ohio Department of Youth Services as the primary legal precedent, which established that Title VII of the Civil Rights Act applies exactly the same evidentiary standard to all workplace discrimination plaintiffs; whether they belong to a minority group or not. Though that seemed to have been achieved in 1989 with City of Richmond v. J.A. Crosen Co., when the Court struck down the Minority Business set Aside Program ruling 6-3, that it violated the Equal Protection Clause of the 14^th Amendment. That ruling also reshaped how state and local governments could approach affirmative action in public contracting, severely narrowing the burdens of proof for discrimination and contributing to the proliferation of disparity studies.

The EEOC is now arguing through the current Notice of Proposed Rulemaking (NPRM), that statutory alignment from 1979 guidelines and related compliance manual sections protected only specific groups (women and minorities) which conflicts with the modern interpretation that Title VII extends equal protections to everyone.  Further, in true Trumpian fashion, the Commission Chair, has encouraged demographic groups ‘like white men or male workers’ in public comments to file charges if they believe they face reverse discrimination.  These dog whistles raise the question of specious cultivation of ‘white’ litigants by the agency to bring lawsuits alleging ‘outsized’ discrimination as a tactic to manage discrimination against others. I mean, that is really kind rich...

Let’s be clear, white men are the least likely to experience discrimination. The Pew Research Center and other think tank subject matter experts have shown that sociological and public data demonstrate higher rates of bias directed at racial, ethnic and religious minorities, while dominant groups report significantly lower personal exposure to treatment in housing, employment and daily interactions; and yes, contracting. This appears, in this slice of historical time, as an administratively scripted insinuation and bone toss to the core conservative electorate, toward leveraging the momentum of the Ames court ruling, while the President and Supreme Court continue their attack on Civil Rights. The Crosen decision, strengthened through the latest Ames outcome – and coupled with recent Civil rights rulings regarding Louisiana v. Callais and Noem v. Vasquez-Perdomo, that speak directly to propping up racial gerrymandering and then racial profiling by ICE immigration officers – are intentional signals from the court, and frankly the President – to authorities and corporations, academic institutions (hats of to Harvard for standing up) – that indicate race, sex or other identity characteristics will not be protective spaces. 

We question if a lack of evidence-based data expands the culpability of companies regarding litigation brought against them?  At the risk of criticism for non-rigorous data mining, a generalized question into the search engines informs “that when standard evidence-based metrics or employment records are absent, courts often shift the burden of proof onto the employer… [Further], if a company fails to maintain required data, document hiring metrics, or preserve relevant records once litigation is anticipated; courts may issue adverse inference jury instructions. This permits or instructs the jury to assume that the missing evidence would have favored the plaintiff.”

Measuring demographics in the workforce was a direct statutory response to businesses and public institutions that refused or suppressed racial, ethnic, labor and academic participation by certain groups of citizens; albeit during much of our nation’s history. Lest we forget that Civil Rights Laws and the corresponding matrix of EEOC regulatory guidance, are part and parcel of the hard fought, cumulative aggregation and cooperation between civic, human rights, and legal organizations, fraternal, student, and community alliances, inter-faith and religious coalitions, organized labor unions, African and Native Americans, Jewish; and many other ethnically purposed civil rights organizations.

Current media and government narratives suggest the practical takeaway is less a change to underlying anti-discrimination laws and more about federal enforcement capacity and priorities. However, even where statutory obligations remain, reduced investigative activity will alter how often those obligations are scrutinized and enforced, or if at all. Much of the civic take on this privately, is that discrimination complaints against people who do not fit the government’s definition of who deserves protection, will be increasingly disregarded, and buried under inevitable and crushing litigatory burdens of proof for people of modest and limited means.

Of 23 public statements given in public hearing on 08.11.2026 - 16 were against the EEOC’s NPRM and seven supported the proposed recission.  Real time review of perspectives across agencies providing feedback to the EEOC, indicate many concerns regarding the proposed recission of 11246. Public statements, in a partial example, were taken from the: Institute of Workplace Equality; Brandeis Center for Human Rights; Legal Defense Fund; University of Massachusetts Ahmerst, Center for Employment Equity; 80-20 Educational Foundation; Ethics and Public Policy Center; National Partnership for Women and Families; ACLU and EEO Leaders; Center for Workplace Compliance; National Economists and Statisticians; National Employment Lawyers Association; Physicians, Nurses and Medical Students; Stand with Asian Americans; Lawyers Committee for Civil Rights Under Law, Whistle Stop Capital, among others.  The listing in my estimation, is akin to the type of coalition and coordinated advocacy described above in arriving at the Civil Rights Act.  That is encouraging.

Anti-discrimination laws that are pro white are an oxymoron.  By comparison, representative participation and equitable distribution of the benefits derived from economic activity is not a pipe dream. Viewing equal opportunity primarily through an individual-rights lens rather than a group-centric lens requires a discriminating cleansing of the Administrations optics - or one would believe the EEOC seems to be vigorously supporting a pro white agenda? And similarly, many supporters believe these changes are meritocracy in motion. The question is, when has meritocracy - collectively - ever been the case in America?   I have seen affirmative action for white men my entire life; literally. That doesn’t mean I haven’t benefited from programs growing out of Civil Rights legislation.  But it does mean that communities of reasonably minded individuals, cannot believe the current crop of leadership: that the EEOC, is attempting to improve anti-discrimination efficacy. It's like parts of the electorate believing they wouldn't be deported if they voted a certain way.

This writer views the debate and unfortunately, these seemingly inevitable policy changes, as cultural backlash. It seems the Administration and in step, the EEOC’s strategy - is designed to weaken our democratic labor, academic and other institutional sectors while fomenting nationalistic fervor at the same time. Legislative machinations being prodded by men who have neither demonstrated they are good for the business of government and have no interest in the masses of people impacted by these changes - or even, the people’s business.  Perhaps if our leadership, it’s departmental agents and the Supreme Court were less compromised? Meritocracy is a myth in a nation that has always and continues to demonstrate a posture of turpitude - and not the moral virtues necessary to maintain it.