Welcome to Workology Podcast, a podcast for the disruptive workplace leader, Join Jessica Miller-Merrell founder of Workology.com, as she sits down and gets to the bottom of trends tools and case studies for the business leader, HR and recruiting professional who is tired of the status quo. Now here’s Jessica with this episode of Workology.
Jessica Miller-Merrell: Welcome to the Workology Podcast, sponsored by Ace the HR Exam and Manager’s Essentials Mini Courses. These are two courses that I offer for certification prep and people leader training. You can learn more about these courses over at Workology.com.
This podcast was recorded and edited in my favorite podcast audio video platform, Riverside. And you can learn more about Riverside and other creator tools that I love over at workology.com/creator.
Today’s episode is one that’s generating a lot of conversation across HR and legal circles right now, and for good reason. The Equal Employment Opportunity Commission is signaling a huge shift in how it approaches workplace discrimination, particularly under Title VII of the Civil Rights Act of 1964. We are seeing this play out in high profile actions involving companies like Nike and Coca-Cola, cases that are challenging long-standing assumptions about who qualifies as a protected group and what constitutes discrimination in today’s workplace. For example, the EEOC is actively investigating whether DEI-related programs may have resulted in discrimination against white employees in hiring and those advancement opportunities, while also pursuing litigation over workplace programs that allegedly excluded male employees from opportunities based on sex. Now, at the same time, agency leadership at the EEOC has made it clear that employment decisions influenced in part or wholly by race or sex may violate federal law, even when tied to diversity initiatives. Now, we have seen this topic hot on LinkedIn for conversation. And I know that we have strong opinions maybe around this. And there’s definitely a buzz around these developments, which is why today’s conversation is going to be focused on what HR leaders need to understand about how the EEOC’s direction may be evolving, what it might mean for compliance, and how to navigate these changes thoughtfully and responsibly. So let’s get into it.
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Today’s guest is Rodney Klein, a nationally recognized expert in workplace civil rights and equal employment opportunity (EEO) law, with more than 30 years of experience spanning both government service and private practice. He began his career with the U.S. Equal Employment Opportunity Commission as an investigator, where he handled individual, class, and systemic discrimination cases, later advancing into leadership roles including outreach and education coordinator for the Dallas District. Rodney Klein has spent decades helping employers and HR leaders better understand the complexities of federal EEO law, enforcement trends, and the practical realities of workplace compliance. As the founder of Rodney Klein EEO Training, Rodney is a sought-after speaker and trainer known for translating complex legal concepts into actionable strategies for organizations. His work focuses not only on discrimination, but also harassment, retaliation, and the Americans with Disabilities Act, but also on building workplace cultures rooted in respect, dignity, and inclusion. He is especially known for helping leaders navigate evolving workplace dynamics, combining legal insight with a deep understanding of human behavior to create environments where both compliance and culture can thrive. Rodney, welcome to the Workology Podcast.
Rodney Klein: Well, thank you for inviting me. It’s a real honor to be here today.
Jessica Miller-Merrell: There’s been a lot of conversation about shifting priorities at the Equal Employment Opportunity Commission. Let’s talk about or maybe give us an overview of what you’re seeing as the most significant changes in how the agency is approaching enforcement right now.
EEOC Enforcement Priorities Are Changing Under Title VII
Rodney Klein: You know, I think I have somewhat of a unique perspective on this because I worked for the agency for almost thirty years. I started as an investigator. I eventually ended up doing education and outreach work for about sixteen years. So I’ve seen a lot of things over the years at the agency. And I have to say that for me, the biggest change over the past year and a half has been the mission or the focus of the agency. The EEOC is no longer centered on the law. Its mission now is more political than it is legal. And I know that people will say, “Well, you know, the EEOC’s always been political, right? Because it’s run by a group of political appointees.” But I’ve never quite seen it like this. It hasn’t always been right about the law—in fact, sometimes it’s like fantastically wrong about the law—but it’s always been centered on it. So let me kind of explain what I’m talking about.
When I was at the agency, I was doing education work and I was in my office one day looking on the computer for all of these EEO articles, and I run across one that says that the EEOC has a lawsuit going before the Supreme Court. And I thought, I didn’t know that. I work in education, I ought to know that, right? So I called our office of legal counsel, and sure enough, we did. And in brief, it was Hosanna-Tabor v. EEOC, and the case involved ministerial exceptions or the idea that the law should not insert itself into the relationship between a minister and the religious organization they work for. And the EEOC’s position was, hey, maybe under certain circumstances the law should. And so I asked our legal counsel for our brief, because I had no idea what our position was. And so they sent it to me and I read it. And my first thought was: We’re going to lose and we’re going to lose big.
How the EEOC Is Handling Discrimination Claims Differently
And we did. We lost nine justices to zero. You can’t lose any bigger than that at the Supreme Court, right? But what’s the point of the story? It’s not that the EEOC was wrong about the law. It’s what did the EEOC do after? Did it continue to sue religious employers over the same issue? No. Did it use the coercive power of its investigations to force religious employers to do what it wanted to do? No. It realigned how it looked at those cases based on the law. And I know that because the EEOC asked me to give training on that issue to three or four separate offices. So it’s always been aligned on the law, or always centered on it. But now the EEOC is deciding what laws it’s going to enforce and what laws it’s not, who’s going to benefit from those laws and who’s not. And that’s inconsistent with the way it’s done in the past.
I think most people are familiar with the big two really, and that is they’re no longer processing sex discrimination charges filed by gay and transgender employees. Now, they suggest that they’re still looking at those cases, but I haven’t seen any. And then the other one that they’re not processing is adverse impact claims. And this is a bigger deal than I think most people make of it, because adverse impact claims are by their nature class cases. And it’s really hard for plaintiff attorneys to do the initial or preliminary investigations to establish an adverse impact. So I think a lot of that litigation is just simply going away as a result. So those are the big two. And the reasons that they’re not doing those are not legal issues; the reason they’re not doing them is for political reasons. And that’s, I think, the biggest change.
What the Nike and Coca-Cola EEOC Cases Mean for Employers
Jessica Miller-Merrell: Thank you for sharing that right out of the gate. The recent cases, or I feel like press releases (I’m using air quotes if you’re listening to the podcast), involve companies like Nike and Coca-Cola. And they have sparked this debate about how Title VII is being interpreted. We’re going to include some resources in the show notes, so if you’re not familiar with what’s going on, you can get up to speed.
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One thing I wanted to ask you: knowing all this and what you’ve shared, what do you think HR leaders should understand more about how the EEOC is currently viewing protected groups?
What Employers Need to Know About Protected Groups and Title VII
Rodney Klein: Well, you know, the interesting part is that if your goals are changed to being political rather than legal, you don’t have to do the same things in order to achieve them. And what I’ve seen over the past year and a half is that the EEOC is not necessarily litigating these issues in a big way. They’re manufacturing public events that they can use to sort of steer a narrative. So if you go back to last year, the EEOC put out a letter and made it public to a lot of law firms asking for a bunch of DEI-sort of information. Legally, that means nothing, right? They didn’t have any investigations on it; they just sent a letter, but they made the letter public and listed the names of all the law firms to start creating a narrative about those law firms. And then what we saw last summer, the head of the EEOC actually comes out and solicits cases from white men, which is really amazing. Because when I did outreach stuff and education, we would publicize events too, but it was more like “know your rights.” It wasn’t like soliciting cases. So legally that means nothing, right? But it pushes a narrative.
And now we look at like the Nike case. Apparently the EEOC has an investigation against Nike. I guess they submitted a subpoena and Nike didn’t respond to it or didn’t respond fast enough, so they sent it to subpoena enforcement. And the EEOC used that as an opportunity to publicize their investigation. If you read the press release from the EEOC, it doesn’t actually say that Nike’s done anything illegal, but boy are they close. They’re strongly suggesting that Nike has been up to no good. The thing about it, though, is that they haven’t completed an investigation. They have no idea whether Nike’s done anything illegal or not. But again, if your goals are political instead of legal, that doesn’t really matter. If your goals are legal, that makes you queasy.
So the thing that I think employers need to remember is that this narrative is kind of changing the way that people talk about workplace civil rights. When I used to go out—and I’ve been in thousands of rooms talking about the law—I went into each and every room with a single premise or a single point of view, and that is: equality is good and discrimination is bad. That’s never been controversial. And yet in your question, you framed it as: “Hey, there’s this debate going on.” What debate, right? This should not be a controversial thing. But that’s sort of the way that it’s being pitched—as if workplace civil rights is a political discussion. And anything that’s a political discussion is like binary: it’s yes or no, it’s right or wrong, it’s up or down. And it’s kind of created this idea that workplace civil rights is a zero-sum game, right? So somebody’s got rights and somebody doesn’t. White people got them, Black people don’t; Black people got them, white people don’t; women have them. You get the idea.
That’s not how workplace civil rights works. So the narrative is actually going in the opposite direction, I think, than what the law typically says. Take the latest case at Coca-Cola Bottling Company. To be fair, we have no idea what’s happening there; we don’t know if there are other facts involved. But let’s just say for the sake of discussion that the only facts in the case are the ones presented in the press release. When I read that, my first thought was: What was that employer thinking, right? Because if that case was reversed and men were allowed to go on a management trip and women weren’t—which of course we know there’s a long history of that—that would have clearly been seen as illegal. So for me, this was like a typical discrimination case. And I think that sometimes the narrative sort of pushes the idea that this is something new, but it’s not.
When I started as an investigator at the EEOC like a hundred years ago, I worked for a deputy director who was brilliant. He was hard to please, but he was brilliant. Early on, we were in a room and he was talking about law stuff, and he said, “You know, there’s no such thing as reverse discrimination.” And I’m like, “Really?” And he goes, “No, really. Go back and read the statute. You won’t find that term anywhere in the statute. Why? Because it’s just discrimination. It’s discrimination based on sex; it’s discrimination based on race.” And I always really appreciated the fact that he explained it that way. Because when you use a term like “reverse discrimination,” it gives the idea that it’s something distinct or different. But it’s not—it’s just discrimination. The narrative is driving the idea that this is something brand new or something that hasn’t been pursued before, and I don’t know that that’s altogether true. The message to employers is: the law really hasn’t altered or changed in any way. You should still be working with it the same way you always have. It’s just that the message we’re hearing is not necessarily lined up with the law because that’s not really the goal.
Jessica Miller-Merrell: Thank you for that. I will say that when I read the announcements, my brain sort of exploded because I just couldn’t wrap my head around exactly what was being said. And it was coming from an organization that I’ve looked to to kind of steer the workplace and the topic of discrimination. So that’s why I was so excited when you were willing to share your perspective and insights—not that it’s the EEOC’s perspective, but just as someone who’s been in the organization and worked there for a really long time.
Rodney Klein: Yeah, I think that’s a shift, right? In the past, like I said, the EEOC hasn’t always been right about the law, but I think most employers have used it as an institution. One of the big values of the EEOC over the years is that it’s kind of a clearinghouse for that sort of information, so that you hear what the EEOC says and then you use that to inform your policies and your trainings. Now, I don’t think that’s necessarily the case. It involves us investing ourselves a lot more in critical listening to what we’re hearing to see whether that lines up with the other things that we know are true legally.
Jessica Miller-Merrell: I think that’s an important perspective to point out when we’re looking at future information releases, articles, press releases, and guidance—knowing that this entity is a political organization first and foremost, versus an enforcement organization.
Rodney Klein: Yeah, you know, let me pitch it a little bit of a different way. One of my favorite writers was Norman Maclean, the guy who wrote A River Runs Through It. He was a master with words. Towards the end of A River Runs Through It, the narrator, who’s a writer, is having a conversation with his father. His father makes the observation: “I know you like to write true stories.” And the son responds: “Yes, I like to write stories that are true.” Those two things sound alike, but they’re not. If we think about them at all, we know that there’s a huge distance between a “true story” and a “story that is true”—you can fit all of mankind and its flaws between those two things. And so the EEOC is saying, “We’re telling true stories.” And hey, maybe they are, maybe they’re not. But they’re not telling stories that are true, right? They’re spinning things off in different directions that don’t necessarily line up with where the law is at.
Jessica Miller-Merrell: Do you feel like we’re moving more towards neutrality in workplace programs, particularly when it is focused on DEI initiatives, and maybe what does that look like in practice?
Does DEI Create Legal Risk for Employers?
Rodney Klein: You know, I think that question is actually kind of a byproduct of the narrative, right? Because they say, “Well, are we shifting more towards a neutral stance?” Because that implies: were they not neutral? The story says it’s not neutral, but were they actually not neutral? I don’t know that that’s the case or that that’s a story that’s true. Look, is it possible? Absolutely. Are white men discriminated against? Absolutely, yes they are. I investigated discrimination cases for a living at one point. I am a firm believer that if there’s a wrong way to do something, there’s a manager out there right now doing it. So yeah, I do think that that’s happened. But is it as pervasive as what we’ve been led to believe through the story? There’s something about it that I just don’t think that’s accurate.
I’ll give you an example. I read all the articles and stories about this employer getting sued for DEI, and that employer agreeing to drop their DEI programs. All of these are big employers—that’s the thing about it that doesn’t ring true with me. These aren’t small mom-and-pops; these are big employers with general counsel and a small army of employment law attorneys. You’d think that if a CEO or board member came into a meeting one day and said, “I’ve got this great new idea, let’s do something that looks like a quota or a preference,” all of those attorneys would literally throw their bodies in front of that bus. So is it possible? Yeah. Is it probable? I don’t think so. I don’t think it’s nearly as pervasive as what we’ve been told.
So I don’t know if there’s greater neutrality; I think there’s greater fear out there. I think even just using the term DEI is kind of fearful these days. In fact, if you notice, nobody ever defines what they’re talking about. You have an idea when you ask the question what DEI is, and I have one too. I’m not DEI, but I worked around it for a long time. But I don’t know if my definition matches yours. How can two people have a conversation about something when we’re not in agreement on what we’re even talking about? Yet it’s such a politically charged word and everybody has an opinion about it, so I find it kind of useless in many instances. I think we’re better off talking about individual programs because there is no separate law for DEI—it’s all the same. Any law that impacts employees is subject to the same standard.
Jessica Miller-Merrell: So with that in mind, it kind of feels like HR should continue operating as they had: following the law, listening to counsel, and providing resources and support for those protected groups.
Rodney Klein: Well, I’d like to say so, right? I think there are two different things going on: there’s the law, and then there’s the message. I’m not going to be naive—employers can say, “We’re ignoring the message, we’re just going to follow the law.” Okay, so that means if you get sued for following the law, you’ll probably win if you’re in Texas in the Fifth Circuit Court of Appeals. But who wants to be in the Fifth Circuit Court of Appeals, right? Nobody wins there. So yeah, there is pressure coming from the other direction, and I kind of feel it in HR communities from time to time. I understand the pull to follow the law—we should all follow the law—but every individual and every organization has to decide: How much of the message are we going to follow? How comfortable are we with this? When are we going to start heading off in a different direction from it? There can be ramifications to not following the message, so I don’t want to be naive about that. But people should keep in mind that what they’re hearing as the message is not necessarily how the law looks at it.
Jessica Miller-Merrell: Let’s take a reset. This is Jessica Miller-Merrell, and you are listening to the Workology Podcast, powered by Ace the HR Exam and Manager’s Essentials Mini Courses. Today I’m talking with Rodney Klein, EEO law expert and founder of EEO Training, about changes at the EEOC. So for organizations that may not be closely following these developments, what are the biggest risks of continuing business as usual right now?
How HR Leaders Can Reduce Discrimination Risk Without Retreating From DEI
Rodney Klein: To me, the biggest risk is the fear. This seems crazy, but a little while ago I was asked to do a presentation on DEI stuff to an HR group, and I was told that there were people who weren’t going to show up because of the topic. The organization did not want them involved in this discussion. There were people there who said they were discouraged from going, not because they disagreed with it, but because they just didn’t want to get involved. I think that’s the biggest risk: employers being so afraid because the narrative is coming out pretty forcefully that people turtle up and say, “We’ll just ignore what’s going on, we’ll pull back.” And that’s kind of difficult.
Let me step back a little bit and explain how this works when we look at things like diversity in the workplace. I’m going to say something that maybe you or other listeners will disagree with, but I don’t really think that diversity should ever be a goal. Philosophically, I think diversity just is—so how do you make “is” a goal? But it’s more problematic in a practical sense because when we call something a goal, what’s the first thing we’re tempted to do with it? Reduce it to a number. We reduce diversity to a number, and all of a sudden we start putting pressure on managers to hit that number, which gets us really close to a preference.
When I was at the EEOC, a guy called me up one time and said, “We just ran our affirmative action report and it says we’re 25 Hispanics short in this one area, so our boss told us to go out and hire 25 Hispanics. We just wanted to know if we can do that.” And I went, “No.” Without missing a beat, he said, “Yeah, we all know that. We just wanted to be able to tell our boss that you said so.” And I said, “Sure, go ahead.” The thing to remember is—and some people listening to this may think: Isn’t that the shortest distance between two points? If we’re 25 Hispanics short, shouldn’t we just hire 25 Hispanics? Maybe it is the shortest distance between two points, but it’s not the legal landscape in which we live. The legal landscape is not interested in a number in and of itself. What the law wants us to do, what employers should stay focused on, is removing barriers to entry for protected groups to open things up. We can use numbers to identify those barriers, but the law isn’t interested in the number itself—it is interested in the barrier, and that’s where we should stay focused.
I know that sounds like a subtle distinction, but it’s super important. Focusing on those things keeps us in compliance with the law. We open things up; we don’t restrict. Restriction is where we get into trouble with the law. Sometimes employers, in an effort to open up for one protected group, will restrict another. That doesn’t work. Just keep opening things up. So back to the question of what people should do: don’t just back away out of fear. Failing to remove barriers is restricting. The law will hold us accountable for barriers to entry for protected groups even if we don’t know about them, so we need to know about them so we can remove them. Employers shouldn’t stop looking for those barriers to entry and removing them just out of fear of running afoul of the message or narrative.
Jessica Miller-Merrell: Shifting gears a little bit, I want to talk about EEOC investigations. How critical is documentation, and what are the most common mistakes you see HR teams making?
Why Documentation Matters During an EEOC Investigation
Rodney Klein: It’s funny because every time I do a training with managers and we get to documentation, I say: documentation is like leaving a trail of breadcrumbs in the woods for people to follow, and some of those people are attorneys. So you need to make sure you do it. The biggest problem I see isn’t really HR—I think HR understands the value of documentation because they’re always asking for it. I think it’s a management problem. In a simplistic way, a lot of managers don’t document because they have an employee who is doing something they shouldn’t be; it’s not bad enough to fire them, but they need to stop. So the manager is faced with the decision: Do I get formal and issue a formal counseling, do the writing, and put it in their file, or do I just sit them down and talk with them?
I’m a big believer in sitting down and talking with people. I think that’s a much better way to work with people than being antagonistic, so a lot of managers do that. The trouble is, when they do that, do they write anything down? No, they don’t. Eight times out of ten it works like a charm and the problem never comes up again. But two times out of ten, about six months later, they’re doing it again. Now the manager wants to do something about it, but they don’t remember when they talked or what they said. Just keep a log of what you talked about, what was agreed on, and when this was done. Keep a log about the good stuff too, because this is all going to go into the evaluation. Just getting managers used to keeping an active running log of what they’re doing with their employees doesn’t mean all of it has to be presented to the employee in an antagonistic way or that they’re forced to sign it. It’s just getting used to the idea that you might have to come back and address this at a later time, so make sure you understand what you’ve done.
Jessica Miller-Merrell: It’s not necessarily about progressive discipline, a written warning, or a final warning and walking through those steps. It’s about having conversations with employees, talking to them directly versus waiting until that moment where we’re like, “I’ve had enough and we need to take action.” Well, Rodney, I really appreciate you taking the time to chat with us today. Where can people go to learn more about you and the work that you do?
Rodney Klein: I have a website: RodneyKleinEEOTraining.com. I know that’s really long, but it’s the easiest way to remember it. Or people can send me an email at [email protected], and I’m happy to talk with them about training needs. I also have a book on Amazon, so if anybody’s interested in that, they can look that up as well.
Jessica Miller-Merrell: Perfect. Well, we’ll make sure to include those in the show notes as well, including the book link on Amazon, your website, LinkedIn, and any other additional resources, including the press releases that we started the conversation off with today. Amazing. Thank you again for chatting with us.
Richard Polak: You’re welcome, this was a lot of fun.
Jessica Miller-Merrell: As we wrap up today’s episode, one thing is clear: the enforcement landscape at the Equal Employment Opportunity Commission is evolving, and HR leaders need to be paying close attention. I’m so grateful that we could have the benefit of Rodney Klein’s vast expertise for this episode. Whether it’s increased scrutiny of DEI programs, a broader interpretation of who might bring discrimination claims to your company, or a renewed emphasis on strict neutrality under Title VII of the Civil Rights Act of 1964, these changes are likely to influence everything—from hiring practices to employee programs and internal policies.
The takeaway here is not to panic or to abandon your workplace initiatives. Ensure that these are grounded in fairness, consistency, and compliance. This is a moment for HR to lead with clarity, not confusion.
If you enjoyed this episode, be sure to subscribe, leave a review, and share it with other HR leaders who are thinking about people development. And as always, you can find more resources, courses, and conversations over at Workology.com. I want to thank you for joining the Workology Podcast, sponsored by Ace the HR Exam and Manager’s Essentials Mini Courses.
You can learn more about my courses as well as my favorite creator tools like Riverside, which I’m using to record and edit this video and podcast, over at workology.com or workology.com/creator for more about my favorite creator tools. You can also check out our new HR Tech Marketplace to help with technology selection at marketplace.workology.com. This podcast is for the disruptive workplace leader who is tired of the status quo?
My name is Jessica Miller-Merrell. Until next time, visit workology.com to listen to all our workology podcast episodes.
RESOURCES
Rodney’s book: Attempts: Brief Observations on Civil Rights, EEO, and the Difficulties of Difference
