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The Equal Employment Opportunity Commission (EEOC) now has a quorum, and private employers could find themselves subject to scrutiny by the current administration.
In the meantime, the U.S. Department of Justice (DOJ) has taken a significant role in opening public entity investigations into various DEI practices, and those investigations provide a window into what private employers may soon encounter. Specifically, the DOJ's recent focus on practices by the city of Austin, Texas and other public entities provides keen insight as to how the administration views hot-button areas, such as bias-reduction practices or highlighting advancements in diverse hiring, that the administration disfavors. While these actions have targeted state and local governments, private employers should expect similar aggressive positions from the EEOC.
On Thursday, September 18, 2025, the DOJ sent a letter to Austin Mayor Kirk Watson stating that it had launched an investigation into the city's DEI initiatives. The DOJ's letter indicated that the investigation aims to determine whether the city engaged in employment practices that discriminate based on race, sex, color, and national origin in violation of Title VII of the Civil Rights Act of 1964.
The letter targets the city for collaboration among departments to "build capacity and leadership in working from a racial equity lens." According to the DOJ, the plan included: (1) delineating clear racial equity expectations regarding hiring and incentivizing use of best practices to minimize bias; (2) applying stronger racial equity criteria to the design and execution of executive-level searches; (3) using racial equity tools designed to integrate explicit consideration of racial equity in policies, practices, programs, and budgets; and (4) collecting and analyzing demographic data in major job classifications to identify gaps in representation.
Similar equity-based principles have formed the basis of DOJ investigations at the state level. On August 27, 2025, the DOJ wrote to the California Environmental Protection Agency stating that it intended to investigate the agency following its 2020 report entitled "Practices to Advance Racial Equity in Workforce Planning." According to the DOJ, practices such as applying a racial equity lens to workforce practices, screening candidates for cultural competency and lived experience, and assembling diverse hiring panels may indicate a pattern and practice of discrimination.
Heralding advancements in diverse hiring has also triggered DOJ activity. On May 19, 2025, the DOJ announced an investigation into remarks made by Chicago Mayor Brandon Johnson at a church service, during which he highlighted the progress of African Americans in his administration. Alleging that those comments implied hiring decisions were made "solely on the basis of race," the DOJ authorized an investigation of the city of Chicago's hiring practices. On September 30, 2025, the DOJ also issued a letter to Des Moines Public Schools Interim Superintendent Matthew Smith, announcing its intent to investigate the school district's alleged race-based teacher recruitment goals. As part of its 2021 "Affirmative Action Program," the district pledged to increase the number of teachers of color in kindergarten through fifth grade by 5-8% through targeted recruitment efforts.
The DOJ's probes reflect the administration's clear focus on equating equity-based initiatives with discrimination. In addition, comments extolling advancements of racial minorities into senior positions have led the DOJ to conclude that such statements imply racial discrimination in hiring. Courts, however, have found that adoption of such principles and training related to those principles have not violated employment discrimination laws such as Title VII, as we previously discussed here. Further, some administration positions lack clarity and consistency with other positions. For example, the Austin letter criticizes the city's collection of demographic data. However, in its July 29, 2025, memorandum guidance, the DOJ advised federal fund recipients that they should ensure that their neutral policies do not result in "proxy" discrimination. The positions could be seen as incongruous, as collecting demographic data would appear necessary to evaluate the effects of any alleged proxy discrimination. Additional clarification from the administration or decisions by courts on this point may resolve this tension.
The DOJ's investigations here are pending. As such, it remains to be seen whether these investigations will assert legal violations and, ultimately, whether courts will uphold the DOJ's positions. Similarly, as it is expected that the EEOC may begin to take similar positions, employers should ensure that their practices are consistent with legal authorities. We will continue to monitor developments.
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