EEOC Enforcement Action Against NIKE Underscores Focus on Alleged Discrimination Against White Workers
By Marci Rechtenbach
A visit to the Equal Employment Opportunity Commission (EEOC) website today starkly illustrates how the agency’s priorities have shifted in President Trump’s second term, including its focus on alleged discrimination stemming from employer Diversity, Equity and Inclusion (DEI) programs. The landing page at www.EEOC.gov greets the user with the message “DEI-Related Discrimination- What to Do If You Experience It,” and a link to “Learn More.” Shortly thereafter, the message rotates to an invitation to “Report Anti-American Bias.” EEOC Chair Charlotte Lucas told Reuters in December that she is making over “the agency to reflect a conservative view of civil rights.” In a Bloomberg Law article, she says her aim is to show employers “that there are consequences for discrimination against anybody and to not automatically assume that they can just make the White guy the scapegoat.” Separately, Lucas posted a video on social media urging White male workers to report discrimination against them to the EEOC. The video was viewed millions of times and drew thousands of comments.
Consistent with Lucas’ goals, on Feb. 4, 2026, the EEOC announced a subpoena enforcement action against NIKE, Inc., filed in federal court. The case seeks a court order requiring NIKE to “produce information related to allegations that the company discriminated against white workers, including as a result of NIKE’s” DEI-related objectives. In its court filing, the EEOC asserts that it is “investigating systemic allegations of DEI-related intentional race discrimination, specifically that NIKE may have 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’s original Charge against NIKE was brought by then-Commissioner Lucas in May 2024. Reports indicate that NIKE was offered and accepted a settlement agreement from the EEOC in January 2025, but the EEOC unilaterally rescinded the agreement and issued new requests for information.
The subpoena the EEOC seeks to enforce was expansive, calling for NIKE to turn over information going back as far as 2018, and involving roughly 16 programs “which allegedly provided race-restricted mentoring, leadership, or other career development opportunities.” NIKE pushed back on the scope of the subpoena, declining to produce all of the information the EEOC sought. The agency ultimately filed its enforcement action in the United States District Court for the Eastern District of Missouri. We will report more about this litigation as it unfolds.
Meanwhile, the EEOC action underscores the need for employers to ensure that all employment decisions and programs—including hiring, layoffs, discipline, development opportunities, mentoring programs and others—are based on legitimate, job-related factors and not influenced by protected characteristics. Documentation of such decisions should be carefully drafted, and reflect the job-related, non-discriminatory reasons underlying the decisions. To avoid EEOC scrutiny, employers would be wise to take a proactive, fresh look at all of their workplace opportunity programs and processes to ensure that they are legally compliant. Parsons’ employment and labor attorneys can help with this type of comprehensive review.
New EEOC Telework Accommodation Guidance for Federal Sector Provides Useful Insights for Private Employers
By Marci Rechtenbach
Last week, the EEOC and the Office of Personnel Management (OPM) published a guidance document entitled Frequently Asked Questions from the Federal Sector about Telework Accommodations for Disabilities (the Guidance). The Guidance was created specifically for federal employers to help them comply with the Americans with Disabilities Act (ADA) and Rehabilitation Act as they implement President Trump’s directive for all federal workers to return to the office full time. It addresses questions such as when telework requests must be granted as reasonable accommodations of disability; how to navigate the interactive process; and when the law allows the employer to rescind or modify a telework accommodation already in place. “These FAQs use the EEOC’s existing guidance to address common questions on how federal agencies can comply with that presidential directive while also complying with their obligations to provide reasonable accommodations under the Rehabilitation Act and the Americans with Disabilities Act,” EEOC Chair Andrea Lucas explained.
Although the Guidance was prepared with federal sector employers in mind, it nevertheless provides useful reminders for private sector employers grappling with return-to-office mandates. For example, the EEOC emphasizes the need for an individualized assessment for each employee who has requested or received a telework accommodation, rather than a “blanket approach.” An employer’s reasonable accommodation obligations are highly fact-specific; what is required or effective for one employee with a disability may not be the same for another. Observing this, the EEOC urges federal employers to take the time needed to address each employee’s situation individually. Relatedly, the Guidance speaks to the role of medical documentation in the interactive process, and what can be asked of the employee’s health care provider. It further advises that an employer need not ignore evidence contradicting an employee’s claimed need for accommodation, but “should take care to base its decisions on the best available evidence. An agency should give due weight to contradictory evidence that is reliable. And it should discount contradictory evidence that is not reliable.” The Guidance cautions, however, that “this is not a license to engage in fishing expeditions to undermine an employee’s request for accommodation.”
Confirming that an employer should follow the interactive process where it leads, the Guidance allows for previously-issued telework accommodations to be continued, modified or rescinded based on the facts involved. It also recommends periodically revisiting a telework accommodation to ensure that it is still effective or required, explaining that “reevaluation and modification of a reasonable accommodation are important steps in the interactive process.” Accommodations may also be reevaluated when material changes occur, such as “a change in the employee’s condition, a change in job requirements, a change in operational needs, a change in law, etc.”
Finally, the Guidance addresses a few questions that will be familiar to most private employers: What if an employee claims that in-person work causes them anxiety? What if they say their disability prevents them from making a lengthy or difficult commute? On the first question, the EEOC says that the law does not “create a general right to be free from all discomfort and stress in the workplace, including anxiety. Instead, the Act entitles disabled employees to a fair shot to do their jobs and enjoy the benefits and privileges of those jobs on comparable footing as their non-disabled peers.” The question is “whether the symptoms impose a material barrier to the employee’s ability to work in the office or enjoy a benefit or privilege of employment,” and “common anxiety, without more, is unlikely to impose a material barrier.”
On the second question, the Guidance notes that “where the length and means of the commute are outside the employer’s control, it is unreasonable to require the employer to excuse the employee from commuting.” Usually, it is not the employer’s job to help an employee with a disability get to and from work, “assuming the employer does not offer such help to employees without disabilities.” However, while eliminating the commute altogether may not be required, an employer may need to provide other accommodations, “such as flexible workplace scheduling, to enable the employee to accomplish their commute and access the worksite,” or telework for a limited period to allow the employee to relocate or find other means for their commute.
Employers with questions about reasonable accommodations related to telework may also find helpful information in the 2023 EEOC document What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
WHD Releases Batch of Opinion Letters on FLSA and FMLA Issues—Including One with a Utah Connection
By Marci Rechtenbach
The Department of Labor’s Wage and Hour Division (WHD or the Division) released six opinion letters on Jan. 5, 2026, addressing a range of issues under the Fair Labor Standards Act (FLSA) and the Family Medical Leave Act (FMLA). WHD opinion letters “provide official written interpretations from the division that address real-world issues and explain how laws apply to specific factual circumstances presented by individuals or organizations, that may also have a broader interest to those impacted by the issue presented.” In 2025, the Department of Labor (DOL) launched a new opinion letters page on its website, making it easier for a user to request an opinion letter or search past opinions.
In the most recent batch of opinion letters, the WHD provided guidance on the following issues:
· The learned professional exemption under FLSA, and whether an employer must classify an employee as exempt when the role qualifies for an exemption; FLSA2026-1
· Whether certain bonus payments must be included in the regular rate of pay for overtime purposes under FLSA; FLSA2026-2
· The impact of state minimum wage law in connection with the FLSA overtime exemption for certain commissioned employees; FLSA2026-4
· How a partial week school closure during a week in which a school employee uses less than a full week of leave affects the amount of FMLA leave the employee uses; FMLA2026-1
· Whether FMLA leave may be used for travel time to and from medical appointments, and whether the health care provider’s certification must address travel time; FMLA2026-2
· Whether a collective bargaining agreement between a labor union and an employer can mandate a 15-minute “roll call” prior to a shift, but exclude that time when calculating overtime under FLSA. FLSA2026-3
The opinion regarding the learned professional exemption under FLSA may be of special interest to Utah employers, as it was requested by a Utah employee. According to the WHD, a Utah licensed clinical social worker (LCSW) for a healthcare organization requested the opinion after the employer had done some internal restructuring that included reclassifying the employee from exempt to non-exempt and discontinuing supervisory responsibilities. The employee asserted that the role continued to be clinical and “align with the FLSA’s exemption for learned professionals, as defined in 29 C.F.R. § 541.301,” and asked the Division “to address whether [the employee’s] role meets the criteria for the FLSA’s learned professional exemption, and, if so, whether [the] employer is nevertheless permitted to pay [the employee] on an hourly basis and reclassify” the role as non-exempt.”
The learned professional exemption requires that an employee’s primary duty must involve work requiring advanced knowledge in a field of science or learning, which is “customarily acquired by a prolonged course of specialized intellectual instruction.” 29 C.F.R. § 541.301(a). The WHD noted that in Utah, LCSW licensure requires a master’s or doctoral degree in social work and found that the employee’s description of “core job duties—e.g., making clinical assessments and psychosocial evaluations, planning treatments, participating in interdisciplinary care teams, among others—” showed that the role required the advanced knowledge reflected in the degree. However, the learned professional exemption also requires that the salary basis test be met. See DOL Fact Sheet #17D. If the employee’s compensation was changed to hourly, the Division noted, the exemption would not apply. Perhaps more importantly, even if the exemption squarely applied, “it is the employer—not the employee—that claims the exemption. In other words, the Act does not require an employer to classify as exempt an employee who meets the requirements of the exemption. Rather, employers have the discretion to classify such employees as non-exempt” as long as they meet the minimum wage and overtime requirements of FLSA.
Employee classification under FLSA is often a source of confusion for both employees and employers. While employers have the discretion to categorize an exempt employee as non-exempt and compensate them accordingly, it is critical to avoid the costly mistake of treating a non-exempt employee as exempt. Employers who want more information regarding FLSA exemptions may find relevant guidance at WHD’s new Compliance Assistance webpage (discussed more below), or by consulting with employment counsel.
DOL Announces New Compliance Assistance Tools for Employers
By Marci Rechtenbach
Late last month, the DOL issued a news release touting the launch of a number of compliance assistance tools “designed to promote greater compliance with federal labor laws and empower employers with the tools and knowledge they need to prevent violations.” Among these new tools are the Compliance Assistance webpage linked above, a series of short videos explaining an employer’s FMLA responsibilities and updated Compliance Assistance Toolkits.
The Compliance Assistance webpage covers topics related to minimum wage, overtime, off-the-clock work, FMLA leave, child labor laws, government contracts and others. It includes links to required workplace posters, forms, fact sheets, and frequently asked questions, industry-specific compliance toolkits and training videos.
The FMLA video series addresses questions like who is a covered employer, employee eligibility for FMLA, qualifying reasons for leave, the certification process, military leave, what is required before and during leave and actions prohibited by the FMLA. Each animated video is under five minutes, and fairly straightforward.
Other employer resources mentioned in the press release include the agency’s opinion letter program, and the Payroll Audit Independent Determination Program (PAID). WHD administrator Andrew Rogers said that these resources are intended to help employers make informed decisions regarding labor law compliance, explaining, “We know that most employers want to follow the law and do right by their employees, so we are eager to offer these new resources to help them understand their obligations.”
Question Corner: Title VII and Terminating Employees with a Criminal Record
By Mitchell D. Lange
Q. Our company has five employees in direct-care roles who have felony convictions. We wish to expand, but state regulations prohibit individuals with felonies from providing direct-care services, so they wouldn’t be able to remain employed. However, we believe this could open us up to litigation, as the convictions were known at the time of hire. Would this fall under Title VII of the Civil Rights Act of 1964 or other anti-discrimination laws?
A. Based on the facts provided, firing these five employees will likely not expose the company to liability. Every state in the U.S., except Montana, presumes that the employment relationship is “at-will” unless modified by a contractual provision for a definite term or forbidding discharge absent just cause. This means that most employers may terminate employees at any time, and for any reason, so long as it does not violate state or federal law.
Title VII of the Civil Rights Act, and other federal laws, would likely not prohibit firing the employees because of their criminal record for purposes of meeting a jurisdiction’s regulations or laws for specific roles. To prove a Title VII claim, a plaintiff must show that an adverse employment action occurred based on the plaintiff’s protected status. Protected statuses include, race, color, religion, sex, national origin, and age (under the Age Discrimination in Employment Act). Notably, criminal status is not protected under Title VII. If firing the employees, however, would disproportionately impact a protected class because of the decision to terminate (i.e., all five employees happen to be your only five employees over 40 years old), then that may violate federal law. In short, so long as the firing does not disproportionately impact a protected class as defined by Title VII, then the terminations likely do not violate federal anti-discrimination laws.
Other state laws like “ban the box” or “fair chance” legislation generally prevent any inquiry into the criminal history of an applicant until a conditional offer is made. These anti-discrimination laws, however, do not prevent an employer from terminating an at-will employee for their criminal status. Without knowing the exact state or city in which your company operates or is planning to expand to, it is unclear whether there would be any other applicable anti-discrimination laws. Generally, there are no other widespread anti-discrimination laws that would prevent an employer from terminating an employee based on their criminal status.
