The EEOC thinks it just filed a blockbuster anti-DEI lawsuit against The New York Times.
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The EEOC just gave employers an (inadvertent) roadmap on how to legally implement a DEI program

The EEOC thinks it just filed a blockbuster anti-DEI lawsuit against The New York Times.

What it actually filed is a pretty good roadmap for how employers can pursue diversity lawfully.

That's the irony sitting at the center of the EEOC's new case against the Times. The agency claims the newspaper illegally passed over a white male editor for a deputy real estate editor position because the company wanted to increase the number of women and people of color in leadership.

The complaint is packed with the kinds of allegations you'd expect in 2026: Slack messages about diversity trends, references to "representation goals," DEI metrics in leadership reviews, and internal discussions about maintaining progress on newsroom diversity.

But if you actually read the complaint carefully — and not just the outrage-bait headlines — something else jumps off the page.

Most of what the EEOC describes is completely lawful.

The lawsuit walks through years of New York Times diversity efforts. The company tracked workforce demographics. It published diversity reports. It expanded outreach efforts to underrepresented groups. It required diverse interview slates and interview panels. It reviewed promotion and retention data. It encouraged leaders to foster inclusion.

And as I read the complaint, I kept thinking: Yes. Good. Keep going.mBecause none of those things violate Title VII. Not one of them.

Somewhere along the way, the public conversation about DEI became hopelessly unserious. Politicians and culture warriors collapsed every diversity initiative into the same bucket, as though mentoring programs, recruiting outreach, demographic tracking, quotas, and explicit race preferences are all legally identical.

They are not.

The law has always drawn a distinction between expanding opportunity and making employment decisions because of race or sex. That distinction still exists today.

Ironically, even EEOC Chair Andrea Lucas has acknowledged this distinction, despite positioning herself as the administration's leading anti-DEI enforcer. Announcing the lawsuit, Lucas said, "There is no such thing as 'reverse discrimination'; all race or sex discrimination is equally unlawful, according to long-established civil rights principles." She's right about that. Title VII does not care whether the employer believes it is discriminating for virtuous reasons. If race or sex affects the outcome, you have a problem.

But notice what Lucas did not say. She did not say employers cannot pursue diversity; companies cannot broaden recruiting pipelines; or employers cannot track demographic data, create mentorship programs, or build inclusive cultures. 

Because they can. An employer absolutely can decide that its recruiting pipelines are too narrow and broaden them; notice that leadership ranks do not reflect the available talent pool and ask why; build mentorship programs for underrepresented employees; require diverse candidate slates; and train managers on bias; measure whether advancement systems are functioning fairly. An employer can even set aspirational goals.

None of that is illegal.

The legal problem arises only if race or sex becomes a factor in deciding who actually gets the job. And that's precisely where the EEOC claims the Times crossed the line.

According to the complaint, the white male candidate met all of the posted qualifications and had extensive editorial and real estate journalism experience. The EEOC alleges that the finalists who advanced all matched demographic categories the Times sought to increase in leadership roles. It further alleges that the candidate ultimately selected lacked one of the job's stated requirements: real estate journalism experience.

Maybe the EEOC will prove those allegations. Maybe it won't. The Times says the selected candidate was the most qualified applicant and denies that race or gender played any role in the decision.

But here's what employers should take from this case regardless of who wins: The EEOC is not attacking the Times because it tracked diversity metrics or cared about inclusion. The EEOC is attacking the Times because it believes those goals infected a specific promotion decision. That's an important difference.

In fact, buried inside this lawsuit is an uncomfortable truth for both DEI critics and DEI advocates: The safest DEI programs have always been the boring ones. The structural ones. The process-focused ones. The ones centered on recruiting, mentorship, outreach, retention, and equal access. Not quotas, demographic balancing, or "we need fewer white men in leadership." Becuase that's illegal. 

Employers, you can pursue diversity. You just cannot select employees because of race or sex.

You can expand opportunity. You just cannot predetermine outcomes.

You can care deeply about representation. You just cannot use protected characteristics as tie-breakers, preferences, or unofficial hiring criteria.

That has always been the law. Which is why this lawsuit is so fascinating. The EEOC intended it to be an indictment of corporate DEI. Instead, it accidentally produced a useful compliance guide. Because when you strip away the allegations about the individual hiring decision, what remains is a long list of lawful, mainstream, defensible diversity practices that employers can still pursue today. And should.

WIRTW #798: the 'gunner' edition

I never expected to fall in love with English football in my 50s. Yet here we are.

A couple of years ago, I started following Arsenal FC. What began as casual curiosity turned into waking up early on weekends, structuring Saturdays around matches, and finding my way to our local Arsenal supporters' bar.

What's struck me most about Premier League culture isn't just the football. It's the songs.

Every player has one. Every meaningful moment has one. The supporters don’t just watch the match; they participate in it. One chant starts in the corner, another picks up across the room, and suddenly the whole bar is singing in unison for a defender, a winger, or the club's newest star.

It's joyful. Tribal. Loud. Completely unlike anything in American sports culture.

So I decided to see what would happen if I asked ChatGPT to write a football song about me.

The result was better than it had any right to be.

🎶  🎶  🎶

He tells you the risk and the move you should make,
Then wins the damn case while plaintiffs pump their brakes.
From breweries to boardrooms they all sing his name:
OH, JON HYMAN, HE MAKES HR GREAT AGAIN!

🎶  🎶  🎶

Come on you Gunners!!!

Here's what I read this week that you should read, too.

Dems urge EEOC to retain pregnancy rule's IVF protections — via HR Dive

Can an Employee Sue for Failure to Accommodate a Disability She Said She Didn't Have? — via Eric Meyer's Employer Handbook Blog

Hallucinations, Inaccuracies, and the Erosion of the Rule of Law — via Above the Law

Asking people to do a one-week work trial before offering them the job — via Ask a Manager

DOL Proposes New Joint Employer Rule: What Employers Need to Know — via Employment Law Letter

AI Resume Screeners Have a Favorite Candidate: Other AI — via Improve Your HR by Suzanne Lucas, the Evil HR Lady

The Psychological Costs of Adopting AI — via Harvard Business Review

Vibes Versus Numbers: The Real State of Craft Beer — via Beervana

Why Breweries Can Hire Staff But Can't Keep Them (And How to Fix It) — via The Brewer Magazine

Tag, You're It: The NFL Franchise Tag as a Modern Non-Compete Agreement — via The L•E•Jer

3 Dangerous Password Habits You Should Avoid — via Boy Genius Report

When employers gamble on bad facts, they usually lose

How does a case like this ever get to trial?

That was my first thought after reading Griffin v. Copper Cellar Corp.

Rose Griffin worked as a cook at a Tennessee restaurant. According to the 6th Circuit, one coworker repeatedly grabbed her breasts, arranged food at her workstation to look like an ejaculating penis, told her he wanted to have sex with her, pushed her down onto a prep station while thrusting against her, and stuck his hands down his pants while massaging himself in front of her.

This was not subtle workplace misconduct. It was repeated, physical sexual harassment.

And when Griffin complained? A supervisor allegedly told her to "keep [her] head down and [her] mouth shut." Managers allegedly laughed about the harassment. The damage to Griffin was severe. She testified that she felt humiliated and violated, suffered nightmares, lost sleep and appetite, experienced chest tightness and muscle spasms, and even contemplated suicide.

A jury found for Griffin on her hostile-work-environment claim and awarded her $179,000 in compensatory damages. The district court later awarded another $480,364.50 in attorneys' fees.

Copper Cellar appealed. The 6th Circuit affirmed everything.

So let's do the math. Copper Cellar now owes more than $659,000, before interest and costs, plus whatever it paid its own lawyers to defend the case through trial, post-trial motions, and appeal. All after reportedly offering just $25,000 to settle the case before trial.

Sometimes, the smartest litigation strategy is knowing when you have a losing hand.

Employers hate paying settlements. I understand why. No company wants to reward litigation or admit wrongdoing.

But litigation is not about pride. It is about risk.

And when your risk includes a jury hearing evidence that a female employee was groped, sexually humiliated, ignored by management, and pushed into suicidal thoughts, you do not roll the dice unless you've exhausted all options.

This employer chose to roll the dice. And it lost badly.

The lesson is not merely "don't sexually harass employees." That should be obvious.

The real lesson is that when the facts are this bad, listen to your lawyer when they tell you it is time to settle.

Because juries do not like employers that tolerate this kind of conduct. And appellate courts are not going to rescue you from the consequences.

The 11th Circuit just lowered the bar on racial harassment

A noose. A blackface doll. Hung at a Black employee's desk.

If you're thinking, "that's a textbook hostile work environment," congratulations—you have better instincts than the 11th Circuit.

In Nevins v. DCH Health Systems, the court acknowledged exactly what happened: an unknown employee hung a blackface doll by a noose in the plaintiff's workspace. The panel even called it what it is—"repugnant and racially hostile."

And then it shrugged.

According to the court, that incident—paired with a couple of stray racist comments over a two-year period—still isn't "severe or pervasive" enough to alter the terms and conditions of employment. Three incidents. Spread out. Case dismissed.

Read that again.
   A noose.
   A blackface effigy.
   At your desk.
   Not enough.

Yes, Title VII isn't supposed to be a "code of workplace civility." But this case isn't about someone being rude, crude, or socially clueless. This is about a symbol of racial terror, paired with blackface, deliberately placed in a Black employee's workspace. That's not incivility. That's intimidation. And it should be unlawful.

This is not a close call. The Supreme Court has told us for decades that "severe or pervasive" is disjunctive. You don't need frequency if the conduct is severe. And if anything qualifies as severe, it's a noose—a symbol soaked in the history of racial terror and lynching—paired with blackface.

Courts across the country have recognized that a single noose can be enough. Because of course it can. The message is unmistakable.

But the 11th Circuit treats it like just another data point in a tally: three incidents over two years, some not said to her face, no evidence it interfered with her job performance. Move along.

That framing misses the point entirely. This isn't about counting comments. It's about the nature of the conduct. Some acts are so egregious that they poison the workplace instantly. This is one of them.

Worse, the court leans on the employer's "prompt remedial action"—telling the employee to throw the doll away.

That's it? Dispose of the evidence and call it a day?

If that satisfies Title VII, then we've set the bar somewhere far below basic human decency.

Here's the practical consequence: this decision hands employers and bad actors a roadmap. One noose? Probably safe. One grotesque racist display? Maybe two? As long as it's not "pervasive," you might dodge liability.

That's not what Title VII is supposed to do. The law is meant to protect employees from workplaces poisoned by discrimination—not to parse whether a lynching symbol shows up often enough to count.

A noose and a blackface doll at a Black employee's desk is severe. Full stop. Anything less turns "hostile work environment" into an empty promise.

Is paid family and medical leave finally coming to Ohio?

Ohio just took another swing at paid family and medical leave. This one might matter.

On April 23, Senators Beth Liston (D) and Louis Blessing (R) introduced SB 396—a bipartisan bill that would create a statewide paid leave insurance program run by ODJFS. It's early. No hearings yet. But bipartisan sponsorship gives this version more legs than prior attempts.


Here's the gist.

The bill sets up a social insurance model funded through payroll contributions (estimated around 0.4%). Employers with 15+ employees would have to contribute. Smaller employers might dodge the payments, but not necessarily the paperwork.

Eligible employees could receive up to 14 weeks of paid leave (18 in some cases) for the usual suspects—serious health conditions, bonding with a new child, caring for a family member, or certain military needs. Benefits would replace up to 85% of wages, capped.

Job protection? Yes. Health insurance continuation? Also yes. And leave would run concurrently with FMLA where applicable.

Employers could opt out—sort of. The bill allows private plans, but expect strict equivalency rules, ongoing reporting, and oversight. If you've dealt with similar programs in other states, you know "opt-out" doesn't mean "hands-off."

If this all sounds familiar, it should. This bill largely mirrors paid leave frameworks already in place across a growing number of states. Ohio is starting to look like the outlier.

So what should employers do now? Don't panic. But don't ignore it either.

Start by pressure-testing your current leave policies against what's proposed. Look at your short-term disability, PTO, and FMLA practices. Model the financial hit of payroll contributions. If you offer generous benefits already, explore whether a private plan could make sense.

And if you operate in multiple states, brace for more complexity. Another jurisdiction means more coordination, more compliance risk, and more administrative lift.

Also worth watching: enforcement. The current draft is light on details, but expect anti-retaliation provisions, penalties, and agency oversight to show up as the bill evolves.

This isn't law. Not yet. But it's not nothing either.

Paid leave keeps coming back to the Ohio legislature. This version has bipartisan backing and a familiar blueprint. That combination makes it harder to dismiss.

Now is the time to get ahead of it. Loop in your HR team. Talk to your payroll provider. Start modeling costs and stress-testing your policies. And if you need help figuring out what this could mean for your business, reach out.

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