In March, the Trump administration’s Equal Employment Opportunity Commission (EEOC) sent concerned letters to 20 of the nation’s top law firms. The problem? Big Law diversity and equity programs were likely illegal, said the administration, because DEI discriminated against male and white candidates. At first, such an attack could seem silly—the policy memo equivalent of a trolling tweet.
But something more insidious was afoot. I used to work at WilmerHale, one of the law firms that received a letter. I was stunned by the rationale. The ostensible legal basis for the administration’s assertion is that these policies violate Title VII of the Civil Rights Act of 1964, which prohibits an employer from making decisions on the basis of characteristics such as race, sex, and national origin—traits that are often referred to as “protected classes.”
Treating the race and sex of white men as protected classes is a startling move for the EEOC, an entity established by that same seminal 1964 law as part of an express attempt to combat discrimination against Black people. Even a cursory glance at its significant court decisions makes it apparent that the agency has been almost exclusively devoted to protecting marginalized groups. (The EEOC website still features a picture of Martin Luther King Jr.)
Trump has converted the casual right-wing rhetoric of “reverse racism” into a legal standard without much thought.
So how exactly can the EEOC jettison that 60-year history and transform overnight into an entity also devoted to protecting white men? By stretching the legal boundaries of what constitutes a “protected class” past the breaking point—with profound consequences for modern anti-discrimination law. When the Supreme Court held in 1954 that “separate but equal” was unconstitutional in Brown v. Board of Education, it did so in a 9–0 decision. The newly minted Chief Justice Earl Warren famously coordinated this unanimity in an effort to forestall backlash. But there was a cost: namely, the absence of anything in the opinion guiding how desegregation would take place. The Supreme Court directed the lower courts to coordinate the desegregation of public schools “with all deliberate speed,” but this ambiguous instruction did not result in uniform enforcement. The decade after Brown saw a massive wave of retrenchment by pro-segregation state lawmakers.
The Civil Rights Act of 1964 sought to remedy this not only by establishing the EEOC, but by barring “discrimination on account of race, color, religion, sex, or national origin” in places of public accommodation, like hotels or restaurants. The concept of “protected classes” was born. “Racial desegregation in private employment,” as one scholar explained, “came only after Congress empowered” the EEOC.
Despite this history, the agency never had a mandate to protect only historically marginalized groups; “race” is the protected class, not “Black people.” This has allowed conservative advocates over the last 50 years to slowly refashion “protected class” for their use. Barely a decade after the Civil Rights Act was passed, in some of the first major anti–affirmative action cases to arrive in the Supreme Court, white plaintiffs argued such policies in schools were illegal because they “discriminated against white applicants on the basis of race.” A bedrock of universities’ fight against racism, the conservatives argued, was racist itself.
These initial efforts were unsuccessful. But through a series of cases, conservatives—particularly legal strategist Edward Blum—continued to push the Supreme Court to consider civil rights legislation to be reverse racism. Five decades of such work culminated in 2023’s Supreme Court decision in Students for Fair Admissions v. Harvard, which effectively killed affirmative action in higher education on the basis that it violated the equal protection clause of the 14th Amendment. Justice Sonia Sotomayor’s dissent criticized the decision as “cement[ing] a superficial rule of colorblindness” and “subvert[ing] the constitutional guarantee of equal protection by further entrenching racial inequality.” The majority’s interpretation of the 14th Amendment, she wrote, was “contrary to precedent and the entire teachings of our history,” and it belied the painfully obvious truth that “ignoring race will not equalize a society that is racially unequal.” Former Columbia University President Lee Bollinger summed up the sentiment of many higher education leaders: “It feels tragic.”
The fact that the Supreme Court has now provided cover for white men to claim the status of “protected class” on the basis of race and sex does not give the EEOC carte blanche to do whatever it wants to shield them. The agency has a well-defined process: a formal complaint, evaluation, and then an investigation. But the recent letters to law firms from the EEOC elided these checkpoints. They stated simply that the inquiry “is exclusively based on publicly available information regarding your firm.” That’s such an egregious break from procedure that it prompted seven former EEOC officials to write to the current chair that “these letters appear to exceed your authority” under the 1964 Civil Rights Act. A separate letter by eight prominent advocacy groups, including the ACLU, similarly stated: “An EEOC Commissioner, even the Chair, has no unilateral authority to demand the requested information and certainly does not have the power to change or reinterpret federal anti-discrimination law based on political whims.”
The obvious is true here: The agency’s moves are a scare tactic. The letters pay only lip service to the EEOC’s actual legal authority. They convert the casual right-wing rhetoric of “reverse racism” into a legal standard without much thought. And they stretch “protected class” until it begins to lose all coherence—which is perhaps part of the point.
The EEOC appears to be trying to weaken the system of discrimination law in general. That’s particularly obvious when seen in the context of the EEOC’s other postelection moves—such as removing safeguards against discrimination on the basis of sexual orientation and gender identity as it did in late January, in seeming defiance of the Supreme Court’s holding in Bostock v. Clayton County that both are protected by Title VII. In total, the gestures undermine the entire legal basis for having discrimination protections. Because when even a government entity can pluck a legal phrase so completely out of its context and use it however it wants, who’s to say that a protected class—or the law, for that matter—should mean anything at all?
This post has been syndicated from Mother Jones, where it was published under this address.