The Trump administration’s scrutiny of Harvard University’s hiring and diversity practices is raising concerns about a potential chilling effect across the nation, experts warn.
Despite the outcome of negotiations aimed at addressing various investigations into Harvard and reinstating its research funding, the administration’s actions may deter employers from implementing diversity-oriented initiatives.
Pauline Kim, a law professor at Washington University who specializes in employment law and discrimination, noted, “Clearly, what the administration is doing with Harvard and Columbia is trying to send a message.
There’s just a real risk that employers will respond as if that is the law, and dial back on any efforts to try to diversify their workforce.”
The foundation for this scrutiny lies in the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin, and established the Equal Employment Opportunity Commission (EEOC) to enforce these prohibitions.
For decades, the EEOC has encouraged employers to pursue diversity efforts that aim to create equal opportunities for all, as outlined in its prevailing guidance.
In April, the EEOC’s Acting Chair Andrea Lucas introduced a charge against Harvard that alleged the university had violated civil rights laws by discriminating against “white, Asian, male, or straight” employees.
Though the EEOC has not confirmed the specifics of the charge, Harvard’s spokesperson Jonathan Swain stated that the university has begun to respond to the allegations and will continue engaging with the agency on its inquiries.
The charge encompasses several aspects of Harvard’s employment practices.
It raises concerns over certain fellowship and internship programs that are perceived as discriminatory due to their focus on underrepresented groups.
The core argument of the EEOC’s case centers around Harvard’s hiring practices as a federal contractor bound by longstanding executive orders calling for demographic measurements to identify workforce representation gaps.
Interestingly, President Donald Trump rescinded this executive order on his second day in office.
Jenny Yang, a former EEOC commissioner and Department of Labor official, explained, “This is a benchmarking to assess whether you’re fully utilizing the talent available in your workforce and whether there are barriers that are artificially excluding qualified people.
That’s all it’s asking to do. Nobody’s saying you need to meet that target.”
Charts previously available on Harvard’s website—now removed—were cited in the EEOC charge, demonstrating how the diversity of the university’s academic staff has shifted over time.
Commissioner Lucas suggested that these statistical trends may indicate possible illegal discrimination against other demographics.
Employment law experts have pointed out significant issues with the legal rationale behind the EEOC’s charge.
The concept of “disparate treatment” applies when intentional discrimination is present, while “disparate impact” refers to unintentional discrimination.
However, the EEOC’s assertion that Harvard engaged in disparate treatment relies primarily on demographic shifts without clarifying how these shifts transpired.
This reliance could inadvertently invoke a disparate impact legal theory, which the Trump administration sought to curtail through an executive order in April that deemed such theories unconstitutional.
Mickey Silberman, founder of Silberman Law PC, highlighted the irony in the EEOC charge depending on statistical trends while simultaneously utilizing an argument the aforementioned executive order aimed to prevent.
Experts believe that the EEOC may have stronger grounds regarding allegations of discrimination in certain student internship and fellowship programs, but further details are necessary to assess whether participants qualify as employees under the law.
While the essence of civil rights laws remains unchanged, President Trump’s re-direction of nearly six decades of employment law reflects a significant strategy aimed at diminishing diversity, equity, and inclusion efforts in favor of a more “merit-based” approach.
The administration has also employed the EEOC to scrutinize hiring practices at corporate law firms.
Proponents of the administration’s approach view these actions as a re-establishment of the authentic intent of anti-discrimination law, asserting that no individual should be favored or disadvantaged based on demographic factors.
Leigh Ann O’Neill, a senior attorney at America First Policy Institute, a legal advocacy group co-founded by current Trump officials, asserted, “Our goal is to end unlawful discrimination in America.
While education institutions currently face our heightened attention, this is by no means our only focus.”
The administration has already reached an agreement with Columbia University requiring extensive measures that effectively eliminate race considerations from hiring processes.
Experts assert that such concessions expand beyond legally mandated practices while allowing some diversity-promotion efforts.
Similarly, the Columbia agreement also included the settlement of EEOC charges alleging civil rights violations against Jewish faculty members.
Despite uncertainties surrounding the EEOC investigation’s direction, monitoring university hiring practices remains a strong priority for the Trump administration.
Consequently, even if other organizations ascertain that specific aspects of their diversity-related hiring methods comply with legal standards, the threat of expensive EEOC investigations may lead them to retract decades of established practices.
As Yang noted, “It appears that there’s not a lot of facts or evidence to support these actions, but the administration is working to create a climate of fear to intimidate employers into abandoning fully lawful efforts to advance equal opportunity.”
Mike Damiano of the Globe staff contributed to this report.
image source from：bostonglobe
