On Thursday, February 4, 2026, the Equal Employment Opportunity Commission (EEOC) filed a subpoena enforcement action against Nike in the U.S. District Court for the Eastern District of Missouri seeking to compel the footwear and apparel giant to produce information related to allegations that the company discriminated against white workers.
Why This Matters for Employers
The enforcement action underscores increased scrutiny of Diversity, Equity, and Inclusion (DEI) programs under federal anti-discrimination laws. Employers should view this development as part of a broader enforcement focus rather than an isolated dispute.
The EEOC has been investigating systemic allegations of DEI-related race discrimination, specifically whether Nike engaged in “a pattern or practice of disparate treatment against white employees, applicants and training program participants in hiring, promotion, demotion, or separation decisions, including selection for layoffs; internship programs; and mentoring, leadership development and other career development programs.” The EEOC further alleged that Nike established race-based workforce representation quotas, which were not just aspirations but “commitments” and “a call to action – with clear goals, strategies, and accountabilities” and that executive compensation was tied to the Company’s progress towards the targets.
Between December 2024 and June 2025, the EEOC issued Nike three requests for information relevant to the investigation. According to the EEOC, Nike failed to fully provide the requested information. The EEOC therefore issued a subpoena to Nike. Nike responded by providing some, but not all, of the information and documents required by the subpoena. As a result, the EEOC filed an action against Nike in Federal Court seeking to compel Nike to fully respond to the subpoena.
The EEOC’s Position on DEI and Title VII
In a press release announcing the enforcement action, EEOC Chair Andrea Lucas stated:
“When there are compelling indications, including corporate admissions in extensive public materials, that an employer’s Diversity, Equity, and Inclusion-related programs may violate federal prohibitions against race discrimination or other forms of unlawful discrimination, the EEOC will take all necessary steps—including subpoena enforcement actions—to ensure the opportunity to fully and comprehensively investigate… Title VII’s prohibition of race-based employment discrimination is colorblind and requires the EEOC to protect employees of all races from unlawful employment practices. Thanks to President Trump’s commitment to enforcing our nation’s civil rights laws, the EEOC has renewed its focus on evenhanded enforcement of Title VII.”
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on protected characteristics such as race and sex, among others. In recent enforcement actions and official communications, the EEOC has taken the position that DEI initiatives, policies, programs, or practices may be unlawful under Title VII if they involve an employment action that is motivated – in whole or in part – by an employee’s or applicant’s race, sex, or other protected characteristic. In a May 2025 press release, the EEOC chair stated:
“Far too many employers defend certain types of race or sex preferences as good, provided they are motivated by business interests in ‘diversity, equity, or inclusion.’ But no matter an employer’s motive, there is no ‘good,’ or even acceptable, race or sex discrimination…”
The enforcement action against Nike reflects the agency’s current enforcement posture regarding DEI-related employment practices.
Potential Title VII Risk Areas in DEI Programs
Corporate DEI may present legal risk depending on how they are structured and implemented. The following practices may attract heightened scrutiny under Title VII:
- Setting hiring targets or quotas based on demographics.
- Using race or gender as a positive factor when selecting candidates for interviews or when making hiring or promotion decisions.
- Reserving certain jobs, internships, or leadership or mentoring programs only for certain demographic groups.
- Describing DEI programs in public-facing marketing or investor materials in a way that suggests preferential treatment for certain groups.
- Mandatory unconscious bias training, which could be interpreted as attributing bias or privilege to individuals based solely on race, sex, or ethnicity.
Steps Employers May Consider to Reduce Risk
To reduce these risks, companies should evaluate their DEI programs and general employment practices to ensure they are fair and applicable to all employees as opposed to providing preferential treatment. The following are some specific steps to consider:
- Ensure that race, gender or other protected characteristics are not part of the hiring, promotion, performance evaluation, or compensation-setting processes.
- Demographic factors should never be considered when contemplating who will be selected for a layoff or reduction in force. Although it is best practice to engage legal counsel to perform a privileged disparate impact analysis of demographic data, such data should never play a role in the business’s initial selection decisions.
- If a company does track gender, race, or other demographic data, it should be used for an aggregate analysis only and not for making individual employment-related decisions.
- Under no circumstance should a company publish or otherwise rely on “unspoken” demographic targets.
- Training, mentorship, and development programs should not be established only for specific groups.
Characteristics of DEI Programs More Likely to Withstand Scrutiny
DEI programs that incorporate the following concepts may be better suited to withstand scrutiny from the EEOC:
- Set a broad definition of diversity that includes more than traditional demographic factors like race and gender.
- Emphasize fairness and inclusivity.
- Focus on broad, aspirational goals of fairness and increasing diversity in general as opposed to setting specific goals for certain groups.
- Training, mentorship, and development programs, including affinity or employee resource groups, should be open to all, should be voluntary, and not tied to advancement decisions.
In general, the EEOC’s guidance on this issue can be summarized as follows: employment decisions must be made without regard to race, gender, or other protected characteristics and this includes employment decisions that are based on a company’s DEI strategy.
Employers should continue to monitor developments in this area and periodically review DEI initiatives with counsel to ensure alignment with evolving enforcement priorities under Title VII. To discuss further, please contact KJK Labor & Employment attorneys Beth Spain (BRS@kjk.com), Dave Campbell (JDC@kjk.com), Emily Vaisa (EOV@kjk.com) or Rob Gilmore (RSG@kjk.com).