USA Trends and Developments Contributed by: Christina Hynes Mesco, Chad Ayers, Kristen Prinz and Amit Bindra, The Prinz Law Firm
that prohibit discrimination on the basis of disability, age and genetic information. Although the genesis of Title VII was primarily to pro - tect minority individuals, the law was written in such a way – and has generally been litigated in such a way – as to bar illegal activity on the basis of protected traits, without making a distinction between members of minority or majority groups. Men and women, for example, could both file claims of sex discrimination, even though women were traditionally more affected by unequal treatment in the workplace. The Trump administration issued several executive orders that have redirected the EEOC’s activity and emphases, of which both employers and investiga - tors should be aware. “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” has aimed to severely curb DEI initiatives. DEI, or “diversity, equity and inclusion”, indicates workplace or other programmes that increase support for and the num - bers of minority individuals, based on race, sex or other factors. This executive order cast DEI policies as potentially violative of the nation’s civil rights laws and directed federal agencies to cease all related initiatives and to “combat illegal private-sector DEI” programmes. As a result, the EEOC issued technical assistance documents that – among many other things – cast workplace affinity groups as potentially constituting “segregation” and claimed that certain DEI workplace trainings could produce a hostile work environment if they are “discriminatory in content, application, or con - text”. Many former EEOC employees, legal scholars and attorneys disagree with these characterisations, but now that the EEOC has recently reached quorum, these documents are likely to become authoritative guidance. One of the executive orders also directed the EEOC to rescind past controlling EEOC guidance that provided examples of harassment on the basis of sexual orientation and gender identity, which were recognised as protected classes under federal law in 2020, and which also mentioned the utility of both workplace investigations and workplace climate sur - veys. The EEOC succeeded in rescinding that guid - ance in January 2026.
Amidst all of this change, a key point to remember is that although EEOC guidance may be shifting, the law has not. Title VII still remains in force, as do other fed - eral civil rights laws. Moreover, the US Supreme Court holding that Title VII applies to both sexual orientation and gender identity is still good law. Bostock v Clayton County , 590 U.S. 644 (2020). Investigators have already found themselves having to respond to previously less familiar claims, such as those of majority-group discrimination or even claims of harassment based on attending a workplace DEI training. Investigators can better navigate this new landscape by keeping in mind some considerations and tips: • emphasise objective criteria, job-related factors and performance evidence in documentation; • explicitly document how actions or policies are consistent with business necessity and company culture; • explicitly document how actions or policies align with neutral Title VII principles; • in interviews or in written reports, avoid connect - ing “implicit bias” to whole classes of people in a blanket fashion; • treat complaints about DEI training or demographic outreach with the same seriousness as other dis - crimination allegations; • ask clarifying questions about precise harm, eg, adverse employment actions and effects on the terms or conditions of employment, as opposed to a generalised complaint, such as an objection to DEI content; • include detailed analysis of whether any claimed DEI practice involved actual adverse employment action based on protected traits; and • consider auditing or recommending an audit of an organisation’s DEI programmes. More now than ever, investigators will have to strive to investigate complaints of majority-group members with the same tenacity that they investigate those from minority reporters. Complaints should not simply be taken at face value depending on the reporter’s demo - graphic status or nature of the complaint, but must always be assessed with a critical eye. And perhaps most importantly, both investigators and internal HR
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