<\/p>\n
The chair of<\/span> the Equal Employment Opportunity Commission, the federal agency created by the Civil Rights Act of 1964 to protect American workers from discrimination, moved<\/a> to delete the agency\u2019s affirmative action rule that was implemented almost 50 years ago.<\/p>\n Chair Andrea Lucas, who was appointed by President Donald Trump, proposed to rescind the \u201cAffirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964\u201d\u00a0rule on May 27. The rule has proved a barrier to her efforts to bring lawsuits on behalf of white men who say they were discriminated against at work \u2014 a barrier the rescission would get rid of.<\/p>\n The move, which was previously unreported, comes amid Lucas\u2019s quest to characterize all employer efforts at diversity, equity, and inclusion as illegal race discrimination. The agency has filed lawsuits under her watch on behalf of white men at the New York Times<\/a> and Coca-Cola<\/a>, as well as investigations into Nike<\/a> and Northwestern Mutual<\/a>.<\/p>\n \u201cThis proposed rescission is part of this administration\u2019s continued assault on equality for people of color and for women,\u201d said former EEOC commissioner Jocelyn Samuels, who added that the change reflects Trump\u2019s \u201csolicitude for the fortunes of white men.\u201d<\/p>\n The EEOC did not respond to a request for comment.<\/p>\n <\/p>\n The rule Lucas wants to do away with was crafted shortly after the EEOC was granted litigation authority in 1972.<\/p>\n Racial discrimination had been rampant throughout American workplaces, and some employers wanted to act to correct those long-standing discriminatory practices and racial disparities in an affirmative way.<\/p>\n Responding to the call, the EEOC crafted the rule to allow for very narrow circumstances in which it would be permissible for employers to take race into account in such efforts.<\/p>\n To take advantage of the rule, employers have to do an analysis showing they had shut out women or people of color for a long time \u2014 in other words, that there were \u201cprior discriminatory practices.\u201d Only then can a hiring process favor, say, Black candidates for a job position.<\/p>\n The rule also gives employers some cover. Under the Civil Rights Act, employers can\u2019t be held liable for taking action done in good faith to follow an EEOC regulation that was voted on by the commissioners, such as the affirmative action rule.<\/p>\n At least one large employer in the Trump EEOC\u2019s sights has cited the rule. In its motion to dismiss the EEOC\u2019s lawsuit, Coca-Cola referred to the agency\u2019s affirmative action rule as proof that the agency has encouraged the very behavior it is now penalizing.<\/p>\n Samuels, the former EEOC commissioner, said Lucas\u2019s move to get rid of the rule \u201ccould be part of an effort to remove a potential defense.\u201d<\/p>\n The Supreme Court has found narrow approaches to affirmative action to be constitutional.<\/p>\n In the 1987 case Johnson v. Transportation Agency and the 1979 case United Steelworkers of America v. Weber, the court allowed employers, in the case of what it called a \u201cmanifest imbalance,\u201d to temporarily take sex and race into account as part of plans to increase representation in particular jobs until women or people of color are commensurate with their share of the population.<\/p>\n Those decisions still stand.<\/p>\n \u201cThe law is set by the statute and the Supreme Court\u2019s interpretation,\u201d said Charlotte Burrows, a senior affiliated research scholar at New York University\u2019s School of Law and a former EEOC chair. \u201cThe EEOC can\u2019t change that.\u201d\u00a0<\/p>\nRule to Fight Discrimination<\/strong><\/h2>\n
Upheld at Supreme Court<\/strong><\/h2>\n