"PROTECTED CLASS"

How an aid to the disadvantaged became a tool for the oppressor

- 

IN MARCH, the Trump administration's Equal Employment Opportunity Commission (EEOC) sent concerned letters to 20 of the nation’s top law firms. The problem? Big Law diversity and equity programs were likely illegal, said the administration, because DEI discriminated against male and white candidates. At first, such an attack could seem silly—the policy memo equivalent of a trolling tweet.

But something more insidious was afoot. I used to work at WilmerHale, one of the law firms that received a letter. I was stunned by the rationale. The ostensible legal basis for the administration’s assertion is that these policies violate Title VII of the Civil Rights Act of 1964, which prohibits an employer from making decisions on the basis of characteristics such as race, sex, and national origin—traits that are often referred to as “protected classes.”

Treating the race and sex of white men as protected classes is a startling move for the EEOC, an entity established by that same seminal 1964 law as part of an express attempt to combat discrimination against Black people. Even a cursory glance at its significant court decisions makes it apparent that the agency has been almost exclusively devoted to protecting marginalized groups. (The EEOC website still features a picture of Martin Luther King Jr.)

So how exactly can the EEOC jettison that 60-year history and transform overnight into an entity also devoted to protecting white men? By stretching the legal boundaries of what constitutes a “protected class” past the breaking point—with profound consequences for modern anti-discrimination law. When the Supreme Court held in 1954 that “separate but equal” was unconstitutional in