Deconstructing Discrimination
To be discriminating—to make distinctions, to be discerning, judicious, or fastidious. To discriminate against, however, is to treat someone unfairly or differently. And if that treatment is based on protected characteristics like race, color, religion, sex, or national origin, it’s a violation of Title VII of the Civil Rights Act of 1964. Additional federal laws protect against age and disability status.
Not all discrimination is the same. Adverse or disparate treatment is an intentional or direct employment decision where someone is treated differently than another similarly situated employee on the basis of a protected status. For example, we’ll only hire men for that position.
Adverse or disparate impact occurs when a neutral policy inadvertently has a discriminatory effect on a protected class of people. This theory was established in the Supreme Court case Griggs v. Duke Power wherein Mr. Griggs was denied a promotion based on requirements not related to the position, and those requirements disproportionately harmed a protected class, namely African Americans. Adverse impact was further reinforced in the 1991 Amendments to the Civil Rights Act.
Enter the EEOC. The Equal Employment Opportunity Commission was established to protect employees from unlawful employment discrimination by enforcing Title VII, it’s amendments, and other federal nondiscrimination laws. In most instances, the enforcement process begins with an individual employee filing a charge of discrimination which the EEOC is required to investigate. During an investigation of an individual’s claim, the EEOC may require either side to provide additional information and documentation. The EEOC may also attempt to mediate or settle charges. In addition, they often issue enforcement guidance.
Recent enforcement activity. The current chair of the EEOC, Andrea Lucas, Esq. has come under scrutiny because of recent enforcement directives resulting in a complaint being filed against her with the Virginia State Bar on April 22, 2026, by the Legal Accountability Center. The complaint says she:
1) refused to investigate disparate impact complaints, instructed EEOC investigators not to investigate these claims, and dismissed lawsuits that were already investigated and filed because they allege disparate impact.
Consider that, as mentioned above, disparate impact is a well-established and codified legal theory.
2) refused to investigate complaints that allege LGBTQ harassment and discrimination despite Supreme Court precedent in Bostock v. Clayton County Georgia.
Consider that in June 2020 Supreme Court Justice Gorsuch wrote the opinion in this case affirming discrimination on the basis of sex applies to an individual’s sexual orientation and gender identity under Title VII.
3) failed to follow EEOC procedures that require notice and (public) comment before rescinding harassment guidelines.
Consider that in addition to failing to follow established procedures in her haste to rescind, the guidelines, which provided concrete and practical information to employers and employees about preventing harassment, a form of discrimination, including sexual orientation and gender identity harassment, are no longer available.
4) used the power of her position at the EEOC to demand documents related to DEI practices from twenty different law firms without statutory authority and in violation of the confidentiality provisions of Title VII.
Consider that the demand for extensive data on hiring, promotions, compensation and broad demographic data on employees and applicants is essentially an audit of these firms’ employment practices which EEOC lacks the authority to do unless there is a specific charge of discrimination. The only data they are entitled to collect from private-sector employers is employee demographic data broken down by race/ethnicity, sex and job categories through the annual EEO-1 report.
The complaint alleges that Lucas is using her position to advance initiatives aligned with political objectives which objectives directly violate Title VII and her obligation as a government lawyer to uphold the law and ensure fairness.
Not only is she allowing protected rights to erode, but she’s also creating an environment where rogue employers could be tempted to become lax in following the law.
“Don’t be distracted by the noise. Watch what they are doing to your rights….” President Barack Obama.