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Presenters

Morgan Pike Epperson

M. Tae Phillips

Navigating the New Administrative: Impacts on Your Workforce with a Focus on DEI and Immigration

Presenters

Name (Office), Name (Office), Name (Office)

Moderator

Name (Office)

Title of Presentation

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Today’s Agenda

Objectivity disclaimer
New Leadership, New Priorities

EEOC Priorities, Enforcement, & Tips
DOJ Priorities, Enforcement, & Tips
Immigration Expectations & Tips

Creating Your Proactive Compliance Toolkit

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Gender Identity

(Enforcing gender binary)

National Origin

(Anti-American bias)

Religion

(Anti-Christian bias)
(Anti-Jewish bias)
(Accommodations)

“Illegal” DEI

Enforcement Priorities

Enforcement Mechanisms:

Executive Orders

Executive Agencies

NOTES: Not doing this through “traditional” routes like legislation. This means that tracking is difficult, and it moves quickly. And, we are looking for guidance in non-traditional sources like press releases, agency memos, and social media posts by agency leaders.

Important because these new priorities impact public and private employers and federal money recipients in particular.

“Acting Chair Andrea R. Lucas understands that our nation’s civil rights laws reject identity politics and instead focus on individual rights and equality. She prioritizes evenhanded enforcement of civil rights laws for all Americans, including by:

rooting out unlawful DEI-motivated race and sex discrimination;

protecting American workers from anti-American national origin discrimination;

defending the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces;

protecting workers from religious bias and harassment; and

remedying other areas that have been historically under-enforced by the agency.”

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Personnel Changes:

Andrea Lucas appointed acting Chair (1/20/25)

Commissioner Kalpana Kotagal’s term to expire (7/27)

No quorum until nominee is confirmed

Practical Significance: No quorum

Limited ability to revise existing, or issue new, regulations / policy directives

Can continue intake, processing, investigation, resolving charges, issuing notices of right to sue.

New Leadership, New Priorities

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New Priorities: “Illegal” DEI

EO 14173: Ending Illegal Discrimination & Restoring Merit-Based Opportunity

Aimed at eliminating use of “dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called “diversity, equity, and inclusion” (DEI)” in violation of federal civil rights laws
Two new EEOC resources released in 2025:

What You Should Know about DEI Related Discrimination
What to do if you experience discrimination related to DEI at work

*New requirements for federal contractors and fund recipients

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Technical Assistance Documents Issued 3/19/25

NOTES: Important notes –

Encourages EEOC charges based on DEI
Emphasizes Title VII’s protections apply to majority groups
Not just employees – Protects applicants and training/apprenticeship programs
Can apply to labor orgs, training programs, staffing agencies
Title VII bars discrimination (“disparate treatment”) against applicants or employees in hiring, firing, compensation, or any term, condition, or privilege of employment

prohibition against discrimination applies to a wide variety of aspects of employment –

Hiring;[16]
Firing;[17]
Promotion;[18]
Demotion;[19]
Compensation;[20]
Fringe benefits;[21]
Access to or exclusion from training[22] (including training characterized as leadership development programs);[23]
Access to mentoring, sponsorship, or workplace networking / networks;[24]
Internships (including internships labeled as “fellowships” or “summer associate” programs);[25]
Selection for interviews,[26] including placement or exclusion from a candidate “slate” or pool;
Job duties or work assignments.[27]

Title VII also prohibits employers from limiting, segregating, or classifying employees or applicants based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities.

ERGS/BRGs
Trainings, programming, other privileges (even if other groups get same)
Training and mentoring programs

Even if not the sole defining factor
Business reason/client preference cannot justify
DEI training can create a HWE
Retaliation for complaining about DEI is prohibited

“What You Should Know About DEI-Related Discrimination at Work”

11 FAQs
45 footnotes
https://www.eeoc.gov/wysk/what-you-should-know-about-dei-related-discrimination-work

“What To Do If You Experience Discrimination Related to DEI at Work”

Accompanying press release and public comments

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Practical Tips – “Illegal” DEI

Review & continually revisit equal-employment-related policies
Consider list of “opportunity” practices identified by Administration:

Broad-based recruitment efforts
Inclusive mentorship & sponsorship programs
Universal leadership & EEO training
Audit job requirements/Job analysis
Standardized interviews
Support first-generation or other socio-economic demographic factors
Reassess approach to work culture
Structured promotion process

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New Priorities: “National Origin”

Denial of equal employment opportunity because of:

Individual’s (or their ancestor’s) place of origin
Individual has the physical, cultural, or linguistic characteristics of a national origin group

“[W]hether an individual (or her ancestors) is from China, Russia, or Nigeria, or belongs to an ethnic group, such as Hispanic or Arab, she is entitled to be free from employment discrimination on that basis.”
Actual or perceived
Can occur within the same national origin group
Does not refer to citizenship status, but…

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Does National Origin Cover “Americans”?

YES! “National origin discrimination includes discrimination against American workers in favor of foreign workers.”

Title VII protects Americans from discrimination in favor of foreign workers.
Treating an American employee less favorably than workers from Mexico can be disparate treatment & create a hostile work environment based on national origin.
A “plaintiff discriminated against because of birth in the United States has a Title VII cause of action."

1. (Fortino v. Quasar Co., (7th Cir. 1991)); 2. (Fulford v. Alligator River Farms, LLC, (E.D.N.C. 2012)); 3. (Thomas v. Rohner-Gehrig & Co., (N.D. Ill. 1984)) (emphasis added).

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Practical Tips and Employer Resources – National Origin

EEOC Resources:

Ensure managers know customer preference & race/national origin preference cannot justify decision-making
Revisit referral policies & workforce composition for lower skilled positions

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New Priorities: Sexual Orientation & Gender Identity

Supreme Court holds Title VII protects employees from discrimination based on sexual orientation & gender identity (Bostock v. Clayton County (2020))
EEOC extended ruling to address restroom & pronoun use, among other items (EEOC's 2024 Enforcement Guidance on Harassment in the Workplace)
EO declares: “It is the policy of the United States to recognize two sexes, male and female” (EO 14168)
Lucas confirms priority to “defend the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work” (January 28, 2025, EEOC Press Release)
Federal court (TX) vacates parts of Guidance (Texas v. EEOC) May 2025.

NOTES: Mention Skillbridge job posting rejection here?

Raises issues of pronoun, bathroom, locker room usage; gender affirming care benefits, etc.

Trump admin interpretation vs Supreme Court and State laws

EO 14168: Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government

Defines sex as immutable and binary

Directs all federal agencies to cease using “gender” and only use “sex”

Defines “gender ideology” as replacing “the biological category of sex with an ever-shifting concept of self-assessed gender identity, permitting the false claim that males can identify as and thus become women and vice versa, and requiring all institutions of society to regard this false claim as true.”

States gender identity is subjective, disconnected from biological reality and not a replacement for sex

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Practical Tips and Employer Resources – �Sexual Orientation & Gender Identity

EEOC enforcement likely to decline during Administration

Dropped pending lawsuits on behalf of transgender workers.
Paused processing of transgender bias charges
Limited funding to states to process these claims

2024 guidance will likely be revised once quorum present

BUT . . .

Various courts are reviewing Bostock’s application
State & local sexual orientation & gender identity protections remain

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New Priorities: Religious Discrimination �and Accommodation

Title VII prohibits discrimination based on sincerely-held religious beliefs & requires reasonable accommodation absent undue hardship
Protects those who belong to traditional, organized religions, (Buddhism, Christianity, Hinduism, Islam, Judaism, etc) and those who hold other sincerely held religious, ethical, or moral beliefs
Remember standard for accommodation recently clarified in Supreme Court’s decision in Groff v. DeJoy

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Religious Discrimination and Accommodation

Recent EEOC Religious Discrimination/Accommodation Cases

EEOC Charges FCA with Firing Worker for Practicing His Faith

Agency says automaker refused religious accommodation, then terminated employee

DETROIT – FCA US, LLC, an international automobile manufacturer of Chrysler, Dodge, Jeep, Ram and Fiat car brands, violated federal law by refusing to accommodate an employee’s request to observe the Sabbath and take unpaid leave for Passover, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit announced today.

The Venetian Resort Las Vegas Settles Religious Discrimination and Retaliation Lawsuit

Hotel to pay $850,000 to Employees Claiming Denial of Religious Accommodations

LAS VEGAS – Venetian Las Vegas Gaming, LLC and Venetian Las Vegas Marketing, Inc. (collectively doing business as “The Venetian Resort Las Vegas”), a hotel and casino resort on the Las Vegas Strip, will pay $850,000 and implement significant policy changes via a three-year consent decree to settle a religious discrimination and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

EEOC Sues Rock Snowpark for Religious Discrimination

Lawsuit claims employee was fired over faith-based social media posts

MILWAUKEE— Crystal Ridge Ski Area, LLC, doing business as The Rock Snowpark, a winter sports park and summer events venue in Franklin, Wisconsin, violated federal law when it terminated a lift operations manager because of his religion, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit announced today.

According to the suit, the Rock Snowpark fired a Christian employee, because of his religious beliefs, in violation of federal law. The EEOC alleges that the employee frequently posted Bible verses and faith-based messages on his personal social media account. Although his posts made no mention of the workplace or coworkers, his supervisor told him to refrain from posting them. After confirming with the supervisor that he could continue sharing scripture, the employee was fired three days later for posting another Bible verse.

EEOC Sues CEMEX Construction Materials Florida for Religious Discrimination

Federal Agency Charges That Construction Material Manufacturer and Transporter Failed to Accommodate Mixture Truck Driver’s Request to Wear Skirt

TAMPA, Fla. – CEMEX Construction Materials Florida, LLC, which manufactures and delivers building construction materials, violated federal law when it failed to accommodate an employee’s request to wear a close-fitting skirt over her pants as required by her religion, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit announced today.

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Practical Tips and Employer Resources – �Religious Discrimination and Accommodation

EEOC Resources

Revisit or develop policy on religious accommodations
Train managers & supervisors on company policies & how to handle requests for accommodation
Considerations for DEI/LGBTQ+ & religious accommodations

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Attorney General Pam Bondi

Priorities:

EO 14173 Strategic Enforcement Plan
Civil Rights Fraud Initiative
Investigations
Lawsuits & threatened litigation
Joint DEI “Discrimination” workplace guidance with EEOC

New Leadership, New Priorities

AG Enforcement Plan Due to White House 5/21/2025

Purpose: “to further inform and advise [President] so [] Administration may formulate appropriate and effective civil-rights policy”

Method: AG Bondi with heads of relevant agencies & OMB

Enforcement Plan: Submit report with recommendations for:

“Enforcing Federal civil-rights laws” &

“Taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI”

DOJ Memo – Weaponizing the False Claims Act

FCA is “primary weapon against government fraud, waste, and abuse”
Prevents government from “subsidizing unlawful discrimination”
Warns “many corporations and schools continue to adhere to racist policies and preferences – albeit camouflaged with cosmetic changes that disguise their discriminatory nature”

Co-led by DOJ Civil Division’s Fraud Section and Civil Rights Division

Each of the 93 US attorneys’ offices identifies one Assistant US Attorney
The DOJ criminal division
State attorneys general and local law enforcement

“Strongly encourages” whistleblowers to file lawsuits/report fraud and offers cash incentives

Utilize FCA to investigate and pursue claims against any federal contractor or grant recipient that

“Knowingly violates federal civil rights laws” &
“Falsely certifies compliance with such laws”

FCA implicated by potential violations of “Title IV, Title VI, and Title IX of the Civil Rights Act of 1964”
Potential FCA violations specifically identified:

Encouraging anti-Semitism, i.e., by failing to protect Jewish individuals
Allowing “men to intrude into women’s bathrooms”
Allowing or promoting divisive DEI policies
Knowingly engaging in racist preferences, mandates, programs & activities i.e., through DEI programs that assign benefits or burdens based on race, ethnicity or national origin

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Expansion of Actionable Adverse Employment Actions

Title VII prohibits discrimination in hiring, firing, pay, or “terms, conditions, or privileges” of employment.
Requires “adverse action,” which traditionally meant:

a tangible action (i.e., hiring, firing, demotion, $ change, etc.)
causing “material” harm

Recent court decisions have expanded “adverse action” in three ways:

No "ultimate employment decision” required

(Hamilton v. Dallas Cnty., 5th Cir. 2023)

No heightened threshold of harm to be an adverse action

(Muldrow v. City of St. Louis, 2024)

No heightened evidentiary standard for “majority” plaintiffs

(Ames v Ohio Dept. of Human Services, 2025)

No "ultimate employment decision” required

Expanded definition of “adverse employment action” to include decisions affecting "terms, conditions, or privileges" of employment, even if not "ultimate employment decisions“(Hamilton v. Dallas Cnty., (5th Cir. 2023))
Gender-based scheduling policy permitting males full weekends off but females no more than one weekend day off

No heightened threshold of harm to constitute an adverse action

Clarified that adverse employment action need not be “materially significant” to be actionable. (Muldrow v. City of St. Louis, (2024))
Harm is required, but no real threshold necessary: “Harm,” “Some harm,” “Disadvantageous change,” “Some injury,” “Worse treatment”
Woman police officer involuntarily transferred to lateral position with same pay and benefits, allegedly due to gender discrimination.

No heightened evidentiary standard for “majority” plaintiffs

Employees who are part of a majority group do not have a higher standard to prove discrimination (Ames v Ohio Dept. of Human Services, (2025))
Court unanimously rejected Sixth Circuit’s “background circumstances” rule, which required majority-group employees to provide extra evidence of employer discrimination to bring discrimination claims under Title VII
Ruling revived heterosexual woman’s suit alleging she was denied promotion in favor of employees who identify as gay

Muldrow v. City of St. Louis, Missouri, et. al.

Lucas May 2024 Statements: Under the broad and low threshold for a covered employment action post-Muldrow, Title VII arguably extends to employment actions like restricting employment training programs, leadership development programs, or mentoring or sponsorship programs to only employees of certain races or sexes; or selecting employees for those types of programs in whole, or in part, motivated by their race or sex . . .Likewise, covered employment actions arguably also include selecting applicants for interviews or placing them on a candidate slate, like a diverse slate policy, motivated in whole, or in part, by race or sex. In short, I think it is a major blind spot for employers to not scrutinize DEI programs that fall outside of hiring, firing, and compensation decisions, based on a misimpression that the DEI program in question does not involve an “adverse action” that is covered under Title VII.”

Ames v Ohio Dept. of Human Services

Lucas press release reaffirms that “EEOC has taken this colorblind, group-neutral position for at least 50 years” and that her priorities include “dismantling identity politics that have plagued our employment civil rights laws, by dispelling the notion that only the ‘right sort of’ plaintiff is protected by Title VII.”

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New Priorities: Immigration Expectations

Expect increased wait times & scrutiny for visa processing.

Expect increased worksite enforcement actions:

Visa Sponsorship Verification:

Work site visits to employers sponsoring professional employees for some visa types.
Does not require subpoena or warrant but does require special procedures.

Form I-9 Audit:

Worksite visits to request Forms I-9 & supporting documents.
Agents are not permitted to ask questions or search premises & must leave after delivering government’s written request.

Warrants:

Agent may present arrest warrant or search warrant.
A judicial warrant – signed by judge – only document that authorizes government agents to enter private areas of a business and must specifically describe areas that may be accessed.

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Practical Tips – Immigration Enforcement

Develop a Written Response Plan, including:

A “front desk” procedure
Steps to Follow if Immigration Arrives at the Work Site
Designated Points of Contact in management team responsible for coordinating with government.
Know Your Rights: Employers have rights when ICE visits a business. ICE agents do not always have the authority to enter a business, stop or question workers, or seize documents.

Considerations:

Public vs private areas of business
Judicial warrant vs administrative warrant

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Creating Your Proactive Compliance Toolkit

1. Establish/Reinforce Guardrails

Equal Employment Opportunity is still the LAW OF THE LAND
Implement strong EEO policies & procedures
Know & define your business needs for EEO & any remaining DEI
Establish objective criteria for hiring, promotions, performance evaluations & all employment decisions
Determine risk tolerance to inform compliance approach
Benchmarking - Consider sector/industry alignment

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Creating Your Proactive Compliance Toolkit

2. Review Current Policies & Practices for Risk (under privilege):

Conduct assessments of policies, practices, procedures

Audit to ensure defensibility & address risks
Ensure fair & consistent employment practices

Review job descriptions/ads to ensure requirements are job-related
Review each stage of selection process

Conduct & leverage privileged workforce analytics for compliance with anti-discrimination laws

Applicants/hires, advancement, pay equity, performance, & terminations

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Creating Your Proactive Compliance Toolkit

3. Establish Plan for Ongoing Compliance:

Based on Guardrails (EEO, business needs, risk tolerance, benchmarking, & objective decision-making criteria)
Document ALL employment decisions & actions at each stage
Continue to collect race/ethnicity & gender data (at least from current EEs)
Leverage Applicant Tracking system capabilities
Develop proactive cadence of review to ensure on-going compliance

Privileged assessments of policies, practices, procedures
Privileged workforce analytics to comply with anti-discrimination laws

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Creating Your Proactive Compliance Toolkit

3. Establish Plan for Ongoing Compliance:

Education & Training:

Stay informed on anti-DEI enforcement efforts

Follow government officials on socials
Ogletree’s New Administration Resource Hub

Educate leaders on civil rights enforcement priorities

Impact of False Claims Act liability for federal money recipients
Expect rise in “terms and conditions” claims & majority plaintiffs
Train on EEO/anti-harassment requirements

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Questions?

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Take Advantage of our free Resources!

Visit our website: https://ogletree.com/insights-resource

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Check Out Our New Administration Resource Hub

Visit our website: https://ogletree.com/new-administration-resource-hub/

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Find Us Online

www.ogletree.com

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linkedin.com/company/ogletree-deakins

instagram.com/ogletreedeakins

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Thank you!

Morgan Pike Epperson
Morgan.Epperson@ogletree.com
M. Tae Phillips
Tae.Phillips@ogletree.com