What the EEOC Subpoena Enforcement Actions Reveal

Earlier in February, the Equal Employment Opportunity Commission (EEOC) filed two subpoena enforcement actions in federal court seeking data and documents from employers accused of race/ethnicity and/or gender discrimination–one against Nike and one against Genuine Auto Parts (aka NAPA Auto Parts). EEOC filed a similar federal court subpoena enforcement action against Northwestern Mutual Insurance Company in November 2025.

The subpoena enforcement actions filed against Northwestern Mutual and Nike arise out of charges that these employers discriminated against White and/or male employees, and the NAPA Auto Parts subpoena arises out of charge that it failed to hire and recruit Black job candidates.

In a typical charge investigation, the EEOC’s information request is not public. If the employer objects to the scope of the information request, in many cases, the EEOC and the employer can negotiate and reach a compromise. When the employer doesn’t produce what the EEOC requested, and the parties cannot agree on a narrower scope, the EEOC can issue a subpoena (still not public). If the parties are unsuccessful in negotiating a narrower scope of the subpoena, the EEOC will proceed to enforce the subpoena in federal court. In the three subpoena enforcement actions identified above, the EEOC attached its information requests or subpoenas as exhibits. Having done so, the information requests and subpoenas are now visible to the public.

Even though the EEOC can seek back pay only for two years prior to the filing of the charge, older evidence may be relevant as background, a continuing violation, or a pattern or practice of discrimination. In addition, just because the EEOC has asked for information dating back to 2018 or 2019 does not mean that the court will grant its request.

So how broad are these information requests and subpoenas, and what is the Commission seeking? Are there patterns?

What Are the Allegations, And What did EEOC Seek?

Nike

In January 2024, America First Legal (AFL) sent a letter to the EEOC alleging that Nike violated Title VII, among other allegations, by setting specific diversity representation percentages for women and minorities in vice president and higher-level roles.  AFL’s letter also challenged the exclusivity of Nike’s employee resource groups (ERGs) and other training, development, and networking opportunities that AFL alleged were open only for members of those ERGs.  Nike publicized its minority and women diversity targets in filings to the Securities and Exchange Commission as well as on its company website.

In May 2024, Commissioner^[1] Andrea Lucas filed a Commissioner charge against Nike, repeating and alleging many of the same violations.  Although AFL identified diversity programs for both women and racial and ethnic minorities, the Commissioner charge alleged discrimination only against White employees and applicants.  For whatever reason, the gender discrimination allegation was dropped.

In December 2024, the EEOC’s Seattle field office sent an email to Nike’s counsel, seeking only two items: (1) clarification/confirmation that Nike’s training, development opportunities, and mentoring opportunities were open to all races, and (2) evidence that Nike’s Amplify program had been discontinued.

On January 2, 2025, the EEOC emailed Nike a proposed conciliation agreement, and on January 9, 2025, Nike signed it.  On January 13, 2025, the EEOC acknowledged receiving Nike’s signed agreement.

Following President Trump’s inauguration, the EEOC on February 18, 2025 withdrew the settlement and issued a 10-paragraph information request with many subparts, seeking extensive information regarding all programs in place since January 1, 2022 which were implemented in an effort to increase the representation of racial and ethnic minorities in Nike’s U.S. workforce.  It also sought:

• job descriptions for all U.S. Director Level positions & above, all U.S. Vice President Level positions & above, and all U.S. Corporate positions and
• information regarding how the company tied Executive Compensation to Nike’s progress associated with increasing diversity and inclusion within Nike’s U.S. workforce, among other requests.

The EEOC followed that information request with a June 6, 2025 information request, seeking:

• additional information regarding all programs implemented to increase the representation of racial and ethnic minorities in Nike’s workforce
• all affirmative action plans, and
• all communications with OFCCP going back to 2018, including the Conciliation Agreement that Nike signed with OFCCP in 2020.

Notably, parts of the June 6, 2025 information request reached all the way back to 2018 whereas the earlier February 2025 information request sought information only back to 2022—an addition of four full years.

Nike responded in part but raised several arguments objecting to the scope of the information requests.  The EEOC then served Nike with the instant subpoena on September 30, 2025.

The subpoena sought:

• documents or information showing Nike’s organizational structure from June 1, 2019 to the present
• information and documents related to layoffs of employees in Nike’s U.S. Corporate workforce from January 1, 2024 to the present
• documents related to Nike’s use of racial or ethnic minority worker data as a factor in setting executive compensation from June 1, 2019 to the present
• data, if maintained, regarding the employment of racial or ethnic minority employees within Nike’s U.S. Corporate workforce from June 1, 2019 to the present
• information regarding Nike’s “Diverse Slates” process and its use from June 1, 2018 to the present
• information about Nike’s participation in sixteen different diversity programs and the individuals who applied to, were considered for, were accepted to / selected for, or were rejected from / not selected for those programs, and
• information related to Nike’s use of “representation data” as referred to in its FY20 Impact Report.

Northwestern Mutual Insurance Company

A White, male employee filed a discrimination charge on March 1, 2025 alleging that he was discriminated against based on his White race and male gender.  He cited the company’s Diversity Equity and Inclusion Policy which focused “additional support and opportunities for women and people of color” going back to 2020.  He further alleged that the company issued “performance metrics within the company and to third party contractors to advance and promote women and people of color.”

In May 2025, the EEOC issued a 21-paragraph request for information with many subparts.  Several requests focused on the charging party’s specific allegations and sought employment files and other information about him and his peer employees.  But many of the requests focused on broader programs.  Those broader requests included:

• all documents or analysis that the employer relied upon in stating that it “does not believe its Diversity & Inclusion goals are in violation of Title VII”
• any affirmative action plans from 2020 to the present
• documents relating to training offered to employees where race, national origin, sex, or sexual orientation was any sort of criteria or consideration for participation, including its Early Career Connections program, LGBTQ+ Study Group, and 3Rising Women Program, along with a complete list of the employees who participated in the training, including their names, contact information, race, national origin, sex, and sexual orientation information
• documents that identify training that did not use race, national origin, sex or sexual orientation as a criteria for participation, and a complete list of employees who participated in that training, including their names, contact information, race, national origin, sex, and sexual orientation information
• any documents showing Northwestern Mutual’s analysis of customer preference in working with advisors that shared the same race, national origin, sex, or sexual orientation of the customer, and how the employer responded to such customer preference
• a complete list of recipients of the Diversity & Inclusion Champion award, including the nomination and selection process and detailed demographic information on the recipients
• documents sufficient to identify the performance management system and/or human resource information system and the various metrics tracked by the system, including documents sufficient to identify the systems used to track Diversity & Inclusion progress and goals
• every woman and person of color retained or promoted by an employee or manager for whom the employee or manager received credit for or positive feedback in accordance with the employer’s “Diversity & Inclusion People Leader Toolkit, which provided goals and suggested metrics, along with detailed demographic information for each person, and
• an Interview with Northwestern Mutual’s vice president of diversity and inclusion, to determine how the company’s DEI initiatives worked.

These requests generally focused on specific programs while the Nike subpoena was potentially broader, seeking the production of all data from June 1, 2019 to the present that “tracked or maintained data regarding the employment of racial ethnic minority employees within [Nike’s] U.S. Corporate workforce.”  The request regarding Northwestern Mutual’s performance management and human resources information system could be a precursor that leads to the type of broad data requests seen in the Nike subpoena.

On June 27, 2025, the EEOC subpoenaed the documents it had requested but did not receive.

Genuine Parts Co. (d/b/a NAPA Auto Parts)

The NAPA Auto Parts subpoena enforcement action arises out of a Commissioner charge that Commissioner Kalpana Kotagal filed alleging a pattern or practice of disparate treatment in hiring against Black applicants.

The information requests included, among other things, the following items from October 2019 to the present:

• documents which outline Respondent’s hiring policies and procedures, protocols, guidance, instructions, handbooks, training materials or other documents that describe Respondent’s application, hiring, interview, or hiring or selection policies or procedures
• all studies or other analyses conducted by any person related to the racial or national origin composition of Respondent’s applicants, hires, or employees, including but not limited to any analysis of whether Respondent has shortfalls or underutilization of applicants or employees based on race or national origin or any analysis of differences in selection or hiring rates based on race or national origin
• a detailed discussion of the hiring process, including:
  • a copy of any blank applications, as well as how and where an applicant obtains and submits an application (in person and online)
  • the name and position/title of all individuals to whom completed applications are submitted
  • a description of the factors used to determine whether an applicant is interviewed, a description of how the invitation to interview is communicated to the applicant and recorded internally, and the name and job position of all individuals that determine whether an applicant is interviewed
  • whether applicant interviews are conducted in-store or by a corporate representative
  • the position/title of the individuals conducting the interviews and the job position/title of the person with final hiring authority
  • a description of the factors used to determine whether an applicant receives a job offer, and the job position/title that determined whether an applicant received a job offer
  • a description of any post-offer steps (e.g., drug test, background check), that an applicant must complete before starting work, and
  • a description of how applicants are notified that they have been offered or not offered a position
• At which step in the process is a person considered a job applicant, how long an application is active, and whether a person may apply for a position when the employer was not hiring.

Thereafter, the subpoena sought “data representing all applicants and employees necessary to identify individuals who applied for positions and those who were hired…at any time between October 1, 2019 to present”, including “both successful and unsuccessful candidates, and current and former employees.” To facilitate this request, EEOC sought a broad array of data fields from three different employment record systems:

1. 137 identified job applicant and employee data fields contained in Workday
2. 42 identified job applicant and employee data fields contained in Jobvite; and
3. 25 identified employee data fields contained in PeopleSoft (the HRIS).

The requested data fields included information about the individuals’ jobs and job applications as well as gender, race, ethnicity, and disability status information and personal contact information (home addresses, email addresses, and phone numbers).  The EEOC explained that it needed this information to “conduct statistical analysis of Respondent’s hiring and recruitment patterns to detect indicia of discrimination, and [ ] allow identification and location of witnesses who can recount their experiences in Respondent’s hiring process (e.g., provide direct or circumstantial evidence of race-based disparate treatment), explain the hiring criteria and selection process, and describe the nature of the jobs that were the subject of the hiring decisions being analyzed.”

What Are The Takeaways From These Information Requests and Subpoenas?

What Can We Observe

1. Collectively across these information requests, the EEOC is seeking data and documents regarding diversity initiatives broadly, as well as certain specific employer programs that appear to have used race/ethnicity, national origin, sex, or sexual orientation in limiting membership or establishing eligibility criteria.
2. The EEOC is investigating individual charges of discrimination as well as initiating Commissioner charges based on third-party interest group letters, such as America First Legal.
3. Practices that federal agencies previously encouraged (explicitly or implicitly), such as federal contractor affirmative action plans, now are being challenged as evidence of intentional and systemic pattern or practice disparate treatment.
4. EEOC is reaching back years to investigate both alleged discriminatory DEI initiatives and allegations of discrimination against Black applicants. It’s notable that EEOC initiated the subpoena enforcement action against NAPA Auto Parts in pursuit of alleged discrimination against Black applicants that sought even broader data than the Nike subpoena did.  It bolsters and enhances EEOC’s ability to reach back many years in its investigations into DEI programs–its stated enforcement priority.

What Should Employers Be Doing

1. Conduct a privileged audit of your current DEI programs and the publicly available information about them. For employers wanting a broader assessment of their risk exposure, extend the privileged DEI audit as far back as 2020, especially if your organization expanded your programs after the 2020 George Floyd murder.
2. Consider running analyses by race/ethnicity and gender to ensure that your hiring, promotion, and termination data does not show disparities or a pattern or practice of disparate treatment.
   1. Employers need to be able to defend their practices vis-à-vis all race/ethnicity groups and both males and females. Doing so will place government contractor and subcontractor and grant recipient employers in the strongest position to make the required certification that they do not have unlawful DEI programs. An employer can’t make the certification with “deliberate ignorance” or “reckless disregard:” it actually needs to evaluate the programs.
   2. Not only do employers need to ensure that their diversity programs aren’t creating biases, they also need to ensure nondiscrimination more generally. The NAPA Auto Parts subpoena enforcement action, initiated a day after the Nike enforcement action, sought equally broad if not broader employment data as the Nike subpoena going back several years to investigate a charge alleging discrimination against Black job applicants.
3. Employers should not reflexively abandon lawful DEI programs. Just as the EEOC in 2025 is seeking information and records as far back as 2018 and 2019 in pursuit of potentially discriminatory DEI initiatives, the decisions that organizations made in 2025 and will make throughout 2026 and beyond will have lasting evidentiary and remedy consequences in the future. As the NAPA Auto Parts subpoena enforcement action shows, EEOC continues to investigate discrimination against Black applicants.  It isn’t pursuing DEI programs to the exclusion of other types of discrimination. Also, the EEO enforcement priorities of future administrations could swing again, perhaps taking a keen interest in employers who abandoned their diversity initiatives. Organizations need not, and perhaps should not, abandon lawful inclusion initiatives. Organizations also should continue to ensure that all decisions comply with Title VII nondiscrimination obligations.

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.