Published by Connecticut Law Tribune
On February 4, 2026, the Equal Employment Opportunity Commission (EEOC) announced it is investigating allegations that Nike discriminated against its white employees based on diversity, equity, and inclusion (DEI) programs.
The EEOC filed a subpoena in federal court compelling Nike to produce information on company DEI hiring targets and other objectives. This is the latest in a series of actions taken in President Trump’s second term to cull DEI initiatives.
Federal Background
DEI programs have faced intense scrutiny during President Trump’s second term. Upon his inauguration, President Trump issued Executive Order 14173 “Ending Illegal Discrimination and Restoring Merit – Based Opportunity.” The Order lambasted DEI as a “corrosive and pernicious identity-based spoils system.” Since then, the U.S. Department of Justice (DOJ) has announced its intention to enforce the White House’s interpretation of federal civil rights law.
In July 2025, the DOJ further cracked down on DEI programs by issuing a Memorandum providing guidance for recipients of federal funding regarding unlawful discrimination. The guidance identified “best practices” and non-binding suggestions to ensure compliance with federal anti-discrimination laws. This only applies to entities receiving federal funding but is indicative of how federal enforcement agencies would approach the law in private matters.
The Memorandum outlined what activities or practices may be considered unlawful. Examples included: hiring or promotion practices which prioritize candidates from “underrepresented groups;” use of “proxies” or standards for advancement requiring “cultural competence” or “lived experience;” and DEI training programs which “stereotype, exclude, or disadvantage” individuals based on protected characteristics or create a hostile work environment. Programs which discuss “white privilege” and “toxic masculinity” were specifically mentioned as potentially being unlawful.
Two months ago, EEOC Chair Andrea Lucas used social media to encourage white men to come forward with their experiences of race or sex discrimination.
EEOC Action Against Nike
The EEOC is now investigating allegations that Nike has discriminated against its white employees through its DEI programs and hiring practices. Interestingly, the investigation does not stem from an employee complaint but from EEOC Chair Lucas’s own 2024 Commissioner Charge. The Charge came shortly after America First Legal, a group founded by Trump adviser Stephen Miller, encouraged the EEOC to file a charge against Nike.
The charge specifically highlighted Nike’s publicly stated aim to have 35% of its corporate body composed of racial minorities by 2025. Lucas said “Title VII’s prohibition of race-based employment discrimination is colorblind and requires the EEOC to protect employees of all races from unlawful employment practices.” She then thanked Trump for the Commission’s “renewed focus” on “evenhanded enforcement.”
In response, Nike released a statement saying the corporation follows “all applicable laws including those that prohibit discrimination.” It remains to be seen where the investigation will lead.
EEOC Letter to Fortune 500 Executives
On February 26, 2026, EEOC Chair Lucas issued a letter titled, “Reminder of Title VII Obligations Related to DEI Initiatives”, to top executives of the country’s 500 largest companies. The letter echoes the sentiment of Trump’s earlier executive orders, and the warning Lucas gave to many of the largest law firms in the country last year. Lucas’s new letter stated that recent “movements and ideologies [related to DEI initiatives]” have been used to “twist our nation’s civil rights law to promote discrimination against certain races or groups.” She explains this is unacceptable.
The letter reminded executives that the Commission regained its quorum in October 2025, “empowering it to bring all types of cases in federal court, including systemic cases; pattern and practice lawsuits; and other large-scale litigation.”
Federal Trade Commission (FTC) Issues Warning to Law Firms Over DEI
The EEOC is not the only federal agency moving against DEI initiatives. The FTC has recently joined the fight but is approaching the matter from a peculiar angle.
In a January 30, 2026, letter, FTC Chairman Anderw Ferguson, warned over 40 major law firms that their participation in the Mansfield Certification Program, created by consulting firm Diversity Lab, may be considered “anticompetitive collusion.” A far different tact from the Title VII discrimination approach taken by the EEOC.
Under this Program, the law firms agree to consider a diverse pool of candidates in the hiring and promotion process. As part of the Program, law firms are urged to consider at least 30% “qualified underrepresented talent” for promotion or hire.
The FTC’s approach may be traced back to when three big law firms challenged Trump’s Executive Order targeting their DEI programs. Based on their lawsuit, a U.S. District Court ruled the Program was not evidence of unlawful racial discrimination. To avoid this finding, the FTC stepped in.
The FTC’s logic asserts the Program may constitute anticompetitive collusion if the law firms are jointly agreeing to set hiring practices. However, it is unclear if that has taken place. Furthermore, there are no analogous cases so it is unclear how a court would rule on this matter if it were ever brought before them.
The FTC has yet to initiate action in court. This theory may simply be an attempt to pressure business and law firms to scrap their DEI programs to avoid potential legal challenges.
DEI at the State Level
While the Trump Administration has made its stance on DEI abundantly clear, things are not as black and white on the state level. The typical blue states are largely pro DEI while red states are unsurprisingly aligned with the Trump Administration.
In December 2025, Florida Attorney General James Uthmeir sued Starbucks for violating anti-discrimination law under Florida’s Civil Rights Act. The lawsuit specifically cited Starbucks’s goal of hiring 40% people of color in its stores and providing rewards for hitting these targets. Uthmeir says Starbucks’s “DEI policies cross the line into race-based quotas.” The lawsuit alleges there have been tens of millions of violations across the state. Each violation can cost up to $10,000 meaning the lawsuit could amount to $100 billion dollars in civil penalties.
Alternatively, Democratic states have responded to Trump’s efforts to dismantle DEI by defending such programs. In February 2025, a group of 16 state Attorneys General released multi-state guidance concerning DEI initiatives. The states included Connecticut, California, Massachusetts, New York, New Jersey, and 11 others. The Guidance stated that DEI best practices are not “illegal, and the federal government does not have the legal authority to issue an executive order that prohibits otherwise lawful activities in the private sector.” In stark contrast to Executive Order 14173, the Guidance states that DEI promotes “the American dream.” The guidance recommended employers recruit from a large pool of applicants with varying backgrounds while also setting standardized criteria based on skills and experience.
Private Sector Response
While companies such as Nike have resisted political pressure to abandon DEI, many businesses have removed diversity quotas or references to DEI altogether.
Such reversals have faced harsh criticism and backlash from the public. Target, Amazon, and Walmart have experienced multiple boycotts since changing their DEI policies. Target suffered a 6.2% decline in foot traffic for 8 straight weeks following its policy changes. In most cases, those losses have subsided now.
What Should Employers Do?
While critics have argued DEI is unfair and anti-merit, some studies purport there are legitimate business justifications in promoting diversity. The Democratic Attorneys General’s multi-state guidance said, “a [2020] study by a top research firm in the U.S. found that companies in the top quartile for diversity were 35% more likely to have financial gains above their respective industry median.”
Regardless of one’s personal views, it is important employers understand best practices to avoid the wrath of the Trump Administration or the public. A key focus from red states and the federal government has been explicit hiring quotas. It is advisable employers review their policies considering this heightened scrutiny and if necessary, revise them. If employers want to step away from the DEI focus, evaluate the public, customer, and employee response and prepare a plan to address any negative repercussions. Employers should also check their own state and city laws.
Brody and Associates regularly advises management on compliance with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
