“Reverse Discrimination” And DEI: Understanding The New US Landscape

This time of year brings several global observances spotlighting anti-discrimination. It is a timely moment then to assess shifting US enforcement trends on discrimination law. Federal agencies are increasingly targeting DEI initiatives and encouraging discrimination claims from majority‑group employees. This signals a noteworthy risk-change for employers. Our US experts explore further below.

Title VII of the Civil Rights Act of 1964 (‘Title VII’) is the core US federal statute prohibiting employment discrimination. Among other things, Title VII established the Equal Employment Opportunity Commission (EEOC), the federal administrative agency that enforces Title VII and other similar laws. It also declared unlawful various forms of employment discrimination against individuals because of their race, colour, religion, sex, or national origin. An individual seeking to challenge unfair treatment by an employer must establish which of these protected classes was the basis of the alleged unlawful discrimination.

In the past, those bringing claims have typically been in, what might be described as, historically disadvantaged groups. Increasingly, however, it is being recognised in the US that all individuals belong to Title VII’s protected classes. After sixty-plus years, equal opportunity legislation is no longer just for historically disadvantaged groups. Instead, today’s regulatory environment increasingly favours so-called “reverse discrimination” claims. This describes claims brought by majority-group employees, namely white men, and is supported by recent case law and driven by the executive branch’s policy priorities.

In this article we examine this changing enforcement landscape in the US and what it means for employers navigating rising scrutiny and litigation risk.

Shifting enforcement priorities on discrimination and DEI

The EEOC’s shifting enforcement priorities now centre on:

• scrutinising “illegal” diversity, equity and inclusion (DEI) practices; and
• signalling to white male employees that they may have grounds to raise discrimination concerns.

The EEOC, under Chair Andrea Lucas, has prioritised scrutiny of employers’ DEI practices nationwide. In particular, it has sought to identify “illegal DEI” that violates federal anti-discrimination laws by promoting opportunities for historically disadvantaged groups.

This focus was sharpened in March 2025, when the EEOC and the US Department of Justice (DOJ) jointly released technical assistance documents. These address their position on potentially unlawful workplace DEI practices. The publications assert that Title VII violations can occur when a DEI policy disproportionately disadvantages members of a majority group. They also state that “there is no such thing as ‘reverse’ discrimination; there is only discrimination.”

In the year that followed, the EEOC expended significant resources pursuing employers known for (or suspected of) having employment policies that promoted DEI. This began with letters to law firms seeking DEI-related information and continued with similar investigations of private employers. In some cases, the EEOC has brought civil claims against companies that have resisted. In doing so, it has sought judicial intervention to force employers to comply with demands for documents, data, and other information related to their DEI programming.

This enforcement shift was made particularly visible in December 2025, when Chair Lucas posted a video on social media. In it she asks: “Are you a white male who has experienced discrimination at work based on you race or sex? You may have a claim to recover money under federal civil rights laws […]”

Two months later, the EEOC sued Coca-Cola alleging that it had discriminated against men by sponsoring a group of women on a multi-day networking excursion. Shortly after, the agency sent warning letters to the 500 largest corporations in the US, reinforcing that the EEOC is intent on pursuing investigations and litigation focusing on DEI-like programmes.

Just part of a bigger picture: The DOJ and evolving case law

The EEOC is just one of numerous agencies carrying out the Trump administration’s stated goal of eliminating DEI. The DOJ’s Civil Rights Division formed a new “Civil Rights Fraud Initiative” to attach significant liability under the federal False Claims Act to federal contractors who “falsely” certify compliance with civil rights laws. They indicated that DEI policies may be construed as violating such laws. This view was outlined in a lengthy DOJ memo to contractors, issued in July 2025. The memo offers numerous examples of unlawful differential treatment to alert employers that they should be aware of potential liability for “reverse discrimination.”

These policy positions find fuel in several recent decisions by the Supreme Court of the United States. In the June 2025 decision of Ames v. Ohio Dept. of Youth Services for example, a heightened burden on plaintiffs alleging discrimination against the majority was rejected. The decision was quickly lauded by Lucas and has hence been cited regularly by the EEOC and other agencies. Elsewhere, Students For Fair Admissions v. Harvard, a decision rejecting affirmative action in college admissions, has been broadly construed by the Trump administration to apply to workplace issues, serving as a justification for various policies. This has included the discontinuation of disparate impact liability as a theory for employment discrimination claims as well as the view of DEI as discrimination.

Limits to the new enforcement approach?

The EEOC and other federal authorities continue to assert a protective stance over the rights of majority-group individuals. Whether judges and juries will respond in a similar way remains unclear.

Plaintiffs – regardless of race, colour, or sex – need to demonstrate harm when alleging discrimination, and such harm must be more than speculative. The lack of actual harm to majority-group individuals has already defeated one challenge to an employer’s extensive DEI programming at the trial court level.

Takeaway for employers

Overall, US enforcement activity around DEI is changing rapidly, and employers should be prepared for increased scrutiny of any practice that could be framed as differential treatment. At the same time, the evolving enforcement landscape is likely to result in more litigation. Employers with the fortitude to withstand claims may seek to contest the allegations in court, but some may prefer to settle with a payout – an outcome that the EEOC is likely to pursue and, if achieved, publicise.

In this new landscape for employers, understanding risk tolerance, evidentiary readiness, and broader workforce implications will be key to forming an effective response strategy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.