This is not the macabre tale of Macbeth. It is the new legal reality. The EEOC’s sweeping subpoena to Nike signals a dramatic change in EEOC enforcement posture toward Diversity, Equity & Inclusion programs previously regarded as permissible, a shift that demands careful navigation by employers.
On February 4, 2026, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed a motion in the U.S. District Court for the Eastern District of Missouri to enforce the administrative subpoena issued in its investigation of Nike, Inc. (“Nike”), for alleged discrimination against white employees and applicants related to Nike’s Diversity and Inclusion (D&I) practices. The administrative subpoena arises out of Commissioner Andrea Lucas’ Charge (“Charge”) against Nike on May 24, 2024, alleging a pattern and practice of intentional discrimination, and alternatively, discrimination based on disparate impact theory. Among the documents attached as exhibits to the EEOC’s Motion to Enforce the Subpoena is Nike’s petition to Revoke or Modify the Subpoena. Nike’s responses indicate that at least some D&I programs were discontinued and some practices targeted by the EEOC are no longer in effect. Regardless, Nike’s motion documents the abrupt change in the EEOC’s decisions regarding enforcement actions after the change in Administrations on January 20, 2025, and the expansive scope of the EEOC’s investigation of Nike.
As of January 2, 2025, Nike received a settlement agreement with the EEOC and signed it without modification on January 9, 2025. However, on February 19, 2025, Nike learned that the EEOC reassigned the investigation to a new office and unilaterally rescinded the settlement agreement without explanation. Nike subsequently received two separate requests for information from the EEOC. The trove of documents filed as part of the enforcement action divulges the expansiveness of the scope of the government’s requests for documentation and of the types of D&I practices and other personnel decisions that the EEOC is currently targeting.
Temporal Scope of EEOC Requests for Information
The charge alleges that Nike engaged in a pattern or practice of disparate treatment against White employees “since at least Nike’s fiscal year 2020 and continuing thereafter.” The charge refers to publicly available documents in which Nike allegedly asserts that since 2020 it exceeded certain racial and ethnic minorities targets established as “five-year 2025 targets” in the span of two to three years for the U.S. workforce.
The EEOC’s requests for information span several periods, including as early as 2018, which is broader than the charge period. An EEOC request for information dated February 18, 2025 and the administrative subpoena filed on February 4, 2026 seek detailed data regarding changes over time, including 1) documents for a seven year period beginning June 1, 2019, relating to consideration of minorities for employment as a means to set executive compensation; 2) data tracking the employment of minority employees beginning from June 1, 2019 to present; 3) all job vacancies and related information where “Diverse Slates” were utilized from June 1, 2018 to the present, and 4) information on sixteen programs that appear to be related to Nike’s Diversity & Inclusion practices and each individual who applied to, was considered for, was accepted to, and was rejected from the program for the period of June 1, 2019 to the present.
Programs Targeted by EEOC
The subpoena confirms that the EEOC is targeting multiple types of personnel decisions and practices with requests seeking information that is not only extensive but granular in detail. Specifically, the EEOC is targeting several Diversity & Inclusion Programs, including the “DEI Mentorship Program,” “Amplify Program,” “CNEXT Accelerate Program,” “Converse All Star Design Team Program,” “Serena Williams Design Crew Program,” “Nike Internship Programs,” and the “Leadership Education for Asian Pacifics.” The requests include participant-level data in a sortable database and in-depth operational details of the programs.
Aside from DEI programs, the EEOC also alleges that Nike’s decisions regarding layoffs may have been discriminatory and is requesting data regarding any separation from employment not related to fault or misconduct of the employee, including data relating to layoffs in 2020 and 2024. The EEOC again seeks a sortable database of all persons considered for the layoff, including individualized employee-level data and supporting documentation for decision-making.
Finally, the EEOC has subpoenaed documents relating to hiring and promotion decisions, including detailed inquiries into executive compensation policies and decisions tied to DEI metrics and production of materials on sharing of demographic and pay data with executives; diverse slate processes; communications and agreements entered into with the Office of Federal Contract Programs (OFCCP); and affirmative action plans maintained by Nike in compliance with OFCCP regulations.
What This Means for Employers
The EEOC’s investigation of Nike represents a sharp shift in enforcement actions: practices that were previously encouraged, either explicitly or implicitly, by federal enforcement agencies are now being reframed as evidence of intentional and systemic discrimination. The agency’s theories appear to rely on both disparate treatment and disparate impact. However, in view of E.O. 14281 and Commissioner Lucas’ more recent comments, it is unclear whether the EEOC will pursue disparate impact theory.
Employers should recognize that all selection decisions for hire, promotion, termination, and access or participation in programs will be subject to traditional Title VII scrutiny. As such, employers should tighten their documentation practices, with decision-making focused on job-related criteria in each stage of the hiring process, beginning with job descriptions and job postings.
The use of certain proven practices that federal contractors typically used for OFCCP compliance purposes, such as use of disposition codes, use of the internet applicant rule, and objective data management techniques to control applicant pools, will help all employers establish that their selection practices are non-discriminatory. Employers should also ensure that diversity and inclusion practices do not become unlawful race- or sex-based preferences and encourage participation in leadership and other programs by individuals of all races and sexes. Prompt and thorough investigation of internal complaints of discrimination is recommended, including those complaints alleging “reverse” discrimination, which could be treated by government agencies as a reason to launch a systemic discrimination investigation. Finally, employers should proactively conduct privileged self-audits to assess disparate impact risks since the government will use statistical evidence to support pattern and practice discrimination cases. To defend against the type of discrimination investigation against Nike, it will be necessary to build a record to show that decisions were made for legitimate non-discriminatory reasons.
Contact us
If you have questions or would like to discuss how your company’s practices could violate federal or state anti-discrimination laws, and best practices to implement given the high level of scrutiny faced by employers, please contact Tracey O’Brien, Erik Eisenmann, Samuel Mitchell, or your Husch Blackwell attorney.