How employers pursue diversity, equity, and inclusion matters far more than whether they pursue it.

The EEOC's recent pursuit of Nike illustrates the point. The agency says that Nike's DEI program is illegal. That's not, however, what Title VII says.

According to a New York Times investigation, EEOC Chair Andrea Lucas has spent more than two years building a case that Nike's diversity initiatives amount to unlawful discrimination against white employees. The investigation didn't begin with an employee complaint. It began with a commissioner charge, followed by an expansive probe into Nike's hiring goals, internships, mentorship programs, leadership development, executive compensation, and layoffs.

The current administration's message is clear: DEI equals discrimination. Except that's not what Title VII says.

Under longstanding Title VII principles—not the EEOC's current enforcement position—a lawful DEI program isn't one that ignores race or sex. It's one that never uses race or sex to make employment decisions.

There is nothing illegal about wanting a more diverse workforce. There is nothing illegal about expanding recruiting efforts, offering mentorships, sponsoring affinity groups, measuring workforce demographics, or setting aspirational diversity goals.
Where employers get into trouble is when race or sex becomes the reason someone is hired, promoted, selected for a program, or laid off.

Ironically, the Nike investigation also provides employers with a useful compliance roadmap. In early 2025, Nike and the EEOC reached a settlement agreement under which Nike affirmed that its training and development opportunities would remain open to all employees and that it would encourage everyone to participate.

Then Trump took office. Because the EEOC had never countersigned the agreement, it withdrew the settlement and instead launched a sweeping investigation into nearly a decade of Nike's hiring, compensation, training, and layoff decisions.

Yet the proposed settlement reflects exactly what employment lawyers (including me) have been advising clients for years. If you're offering leadership development, mentorships, internships, or networking opportunities, make them available to everyone. Use objective selection criteria. Focus on expanding opportunity, not limiting it. Build inclusive programs, not exclusive ones.

The Supreme Court may eventually narrow what employers can do in the DEI space. The current administration clearly hopes so. The EEOC's enforcement priorities expressly seek cases that could reshape the law. But we're not there yet, and we may never get there.

Employers shouldn't treat every DEI initiative as radioactive. They should treat DEI like every other employment practice: design it carefully, administer it fairly, and make sure it complies with Title VII.

Because under Title VII, pursuing diversity isn't unlawful. Making employment decisions based on protected characteristics is.

Federal disability discrimination laws exist to ensure that people with disabilities are judged on their abilities—not their diagnoses. They require reasonable accommodations. They prohibit discrimination. They level the playing field.

What they do not do is excuse misconduct.

That's the important takeaway from Brantley v. University of Texas at Austin, a recent 5th Circuit decision that rejected a student's attempt to use the Rehabilitation Act as a shield against discipline for repeatedly harassing a professor.

The facts are difficult.

After taking one of the professor's classes, the student continued emailing him. Not once or twice. According to the court, hundreds of times.

The emails ranged from academic topics to deeply personal discussions of trauma, mental health, and self-diagnosis. The professor repeatedly tried to establish boundaries. He provided information about campus mental health resources. He asked that future communications be limited to academic matters. Eventually, he pleaded with her to stop contacting him altogether, explaining that the constant emails were causing him "a tremendous amount of distress."

She kept emailing.

The university ultimately placed her on disciplinary probation.

Her lawsuit didn't deny the conduct. Instead, she argued that her disabilities—including ADHD, complex PTSD, and PMDD—caused her communication patterns, and that disciplining her without accommodating those disability-related behaviors violated the Rehabilitation Act.

The 5th Circuit wasn't persuaded.

Relying on long-standing ADA precedent from the employment context, the court reiterated an important principle: disability discrimination laws do not require employers—or universities—to tolerate harassment simply because the person engaging in it has a disability.

As the court put it, federal anti-discrimination law cannot be used to "immunize" someone from the consequences of harassing another person.

That's exactly right.

This principle matters well beyond higher education. Employers routinely face similar arguments when employees engage in threatening, abusive, or otherwise inappropriate workplace conduct and later claim the behavior stemmed from anxiety, PTSD, ADHD, bipolar disorder, or another medical condition.

The ADA requires employers to consider reasonable accommodations that help qualified employees perform their jobs. It does not require employers to excuse misconduct that violates legitimate workplace rules or infringes on the rights of others.

That's not because disability rights are unimportant.

It's because everyone else has rights too.

Coworkers have the right to work free from harassment. Supervisors have the right to establish reasonable professional boundaries. Employers have the obligation to maintain safe, respectful workplaces.

Perhaps most importantly, arguing that disability should excuse harassment does a profound disservice to the millions of employees living with disabilities who never engage in this type of conduct.

Most people with ADHD don't harass their supervisors.

Most people with PTSD don't ignore repeated requests to stop contacting coworkers.

Most people with mental health conditions understand and respect professional boundaries every day.

When litigants suggest that disability itself excuses harassment, they reinforce exactly the kind of harmful stereotypes disability laws were enacted to eliminate—that people with disabilities cannot control themselves or should be held to different standards of conduct.

That's wrong as a matter of law. It's even worse as a matter of public perception.

Disability accommodation and workplace accountability are not mutually exclusive. Good employers can—and should—provide reasonable accommodations while also enforcing neutral conduct rules that protect everyone in the workplace.

The ADA isn't a license to harass. And courts are right to keep it that way.

🎶 I get knocked down, but I get up again… 🎶

Like just about everyone else of a certain age, I know every word to Tubthumping. It's one of those songs that still somehow finds its way into bars, sporting events, wedding receptions, and random playlists nearly 30 years later.

And because of that, I always assumed Chumbawamba was exactly what it appeared to be: a one-hit wonder with one incredibly catchy song.

I was wrong. Very wrong.

The other night, after Tubthumping came on while we were driving home from dinner, I asked Siri to play more Chumbawamba.

I was completely unprepared for what came next.

Why did no one ever tell me that Chumbawamba is actually a really good band?

I expected a few more songs that sounded like Tubthumping. Instead, I got a musical identity crisis—in the best possible way.

Punk? Yes.
Techno? Yes.
New wave? Yes.
Folk? Yes.
Choral music? Somehow… yes.

Their catalog lurches from one genre to another with complete confidence, and yet it all somehow works. It's chaotic, unpredictable, and more creative than I ever would have guessed from the band that gave us one of the biggest singalong anthems of the 1990s.

Then I did what we all do after discovering something unexpected: I went to Wikipedia.

Turns out Chumbawamba spent decades as an anarchist collective, releasing fiercely political albums long before Tubthumping accidentally made them international stars. They never really seemed interested in becoming famous, and after cashing the checks from their one massive hit, they largely went back to making exactly the music they wanted to make.

Honestly, that explains a lot. Tubthumping wasn't the beginning or the end of the story. It was just the one song that happened to break through.

Sometimes the internet gets it wrong.
Sometimes radio gets it wrong.
Sometimes we get it wrong.

Sometimes a band you dismissed as a one-hit wonder has an entire catalog that's smarter, stranger, and far more interesting than the one song everyone remembers.

I think there's a workplace lesson buried in all of this. We all have a tendency to reduce people to a single data point—the one presentation, the one mistake, the one success, the one reputation. But people are almost always more complicated than that.

The best managers stay curious long after everyone else has stopped paying attention.

So, employers, stay curious. You never know what you might discover when you look beyond the one thing everyone else remembers.These disabled workers lost their jobs. They say AI targeted them — via USA Today

A white man gets fired. His employer has a DEI program. Therefore, the DEI program caused his termination.

That argument has become increasingly common in employment discrimination cases. It's also usually not enough.

But Chavers v. WestRock Services shows what happens when a plaintiff brings more than complaints about corporate diversity goals.

The facts in Sharpe-Miller v. Walmart read less like a judicial opinion and more like an HR nightmare.

An assistant store manager allegedly told a gay employee, "Good—if homosexuals got any more rights, then we might as well legalize pedophilia and bestiality."

Coworkers regularly called him "f****ft," "butt pirate," and "Jerry the fairy." They mocked his walk, joked that he was "afraid to break a nail," made limp-wrist gestures whenever he passed, and one even called him a "pedophile."

Then someone drew a picture on the breakroom whiteboard with "F***T" scrawled across the figure's forehead.

When the employee reported it, his supervisor's response was to erase the drawing and say, "Boys will be boys."

The district court nevertheless dismissed his hostile work environment claim on summary judgment.

Earlier this week, the 10th Circuit reversed.

The opinion is worth reading because it corrects several common misconceptions about hostile work environment law. Most importantly, the court rejected the notion that harassment must amount to a "steady barrage" of discriminatory comments before it becomes actionable. That phrase has appeared in prior cases, but, as the 10th Circuit explained, it is descriptive—not a legal requirement. The governing standard remains the Supreme Court's familiar rule: harassment is unlawful if it is severe or pervasive enough to alter the terms and conditions of employment.

Those two words matter, and mean exactly what they say.

An employee doesn't need to endure daily abuse if a handful of incidents are sufficiently severe. Comparing homosexuality to pedophilia. Calling a gay employee a pedophile. Writing a slur across a drawing in a workplace breakroom. A reasonable jury could conclude that conduct crosses the line even if it wasn't constant.

The opinion also corrects several evidentiary mistakes that employers and lawyers sometimes make.

The district court dismissed comments about the employee's "cat walk," swaying hips, and being "afraid to break a nail" as unrelated to sexual orientation. The 10th Circuit disagreed. A jury could reasonably view those comments as mocking stereotypes associated with gay men, especially when considered alongside the explicit anti-gay slurs.

The court also explained that anonymous comments can still matter, remarks directed at others can still shape the workplace environment, and discriminatory slurs are not hearsay when they're offered simply to prove they were spoken rather than for the truth of what they assert.

Perhaps the most significant part of the opinion addresses an issue the 10th Circuit had never squarely decided before. The court held that discrete employment actions—such as a demotion or termination—can also be considered as part of a hostile work environment claim when they contribute to the overall pattern of discriminatory harassment. Those acts don't disappear from the analysis simply because they might also support separate discrimination claims.

For employers, the practical lessons are straightforward.

First, train your supervisors. More employment cases are lost because of a supervisor's offhand comment than because of a complicated legal issue.

Second, never respond to workplace harassment with "boys will be boys." That phrase doesn't end investigations. It creates lawsuits.

Third, don't assume hostile work environment claims require relentless, daily harassment. Sometimes a few extraordinarily offensive incidents are enough.

And if those incidents are ignored or condoned by management, don't be surprised when a jury—not a judge—gets to decide what happens next.

AI Isn't the Problem. Lazy Lawyering Is. Apple v. OpenAI offers a master class in spotting trade secret theft before it's too late WIRTW #802: the 'it's a small world' edition When the boss gets involved, the investigation is already in trouble. The 4th Circuit just made wage-and-hour class actions a lot harder to certify