Stay up to date with our Up First newsletter sent every weekday morning.

The OG of DEI hiring policies is facing an existential challenge.

Florida Attorney General James Uthmeier has advanced his threats to take enforcement action against the NFL over its Rooney Rule, issuing the league an investigative subpoena on Wednesday.

That makes professional football just the latest target of MAGA backlash to diversity, equity and inclusion efforts.

The Rooney Rule was adopted in 2003 amid an outcry over the lack of opportunities for Black coaches in a league dominated by Black talent. The thinking was that a concerted effort to bring in more minority candidates would help address the imbalance.

While its effectiveness has been panned by many, including coaches, former coaches, the NFL Players Association and football fans, the rule remains in force today. In its current form, it requires NFL teams to interview at least two people of color or women for top jobs including head coach and general manager, and at least one person of color or a woman for quarterback coach and other senior roles.

In March, Uthmeier called on the NFL to suspend the rule altogether.

"Florida law is clear," he said in a video posted to X. "Hiring decisions cannot be based on race, and the Rooney Rule mandates race-based interviews and incentivizes race-based decisions. That's discrimination."

A broader campaign waged by the Trump administration

His words echo a broader campaign waged by the Trump administration. The Equal Employment Opportunity Commission, which for decades sought to remedy vast racial injustices in America, has now made tackling discrimination against white people, especially men, a priority.

In an interview with NPR earlier this year, the agency's Trump-appointed chair, Andrea Lucas, said she has no problem with employers broadening their recruitment. But repeatedly, she has warned employers that even in the interview selection process, they should not take into consideration a candidate's race, sex or any other protected characteristic under Title VII of the Civil Rights Act.

"All it has to do is motivate — in whole or in part — your decision-making, and you're into unlawful territory," Lucas says.

The NFL stands by the Rooney Rule 

The NFL made no comment this week after the subpoena, but days after Uthmeier first launched his battle against the Rooney Rule, NFL Commissioner Roger Goodell addressed the matter at a press conference. He maintained that the rule is not a hiring mandate, but rather something that has helped teams find the best talent.

"The Rooney Rule's been around a long time. We've evolved it, We've changed it. We'll continue to do that as circumstances warrant," he said, noting that similar policies have been embraced by industries far beyond football.

In fact, following the murder of George Floyd in 2020, wide swaths of corporate America rushed to adopt their own versions of the Rooney Rule amid intense pressure to address systemic racism in America.

Federal civil rights laws generally prohibit employers from taking race, sex or other protected characteristics into consideration when making employment decisions. But creating slates of diverse candidates as one step in the hiring process, ahead of any final decision, was widely considered legal. Not anymore.

Growing challenges to diverse slates

Amid shifting political winds, the proliferation of diverse slate policies quickly generated backlash. Many companies have since walked away from their DEI initiatives.

In 2024, the conservative group America First Legal, co-founded by Trump advisor Stephen Miller, sent the EEOC a request for an investigation into the Rooney rule and other DEI-related practices. The agency didn't respond to a question from NPR about what, if anything, has come of that.

But based on actions the EEOC has taken against other prominent organizations, an investigation into the NFL seems plausible, even probable.

Already, the agency is investigating the New York Times and Nike over their DEI-related goals and practices, including assembling diverse slates of candidates for jobs.

In a lawsuit against the New York Times, the EEOC alleges a white male employee met all the requirements for a deputy editor job but was excluded from a final round of interviews because his race or sex didn't match what the news organization was looking for.

In a statement shared with NPR, the Times called the allegations "politically motivated" and said it hired the most qualified candidate, adding, "she is an excellent editor."

The investigation into Nike dates back to 2024, when as a commissioner, Lucas filed a charge of discrimination against the company. She alleged that since at least 2020, Nike had engaged in "a pattern or practice of disparate treatment against White employees," including through its "diverse slates process."

In a recent court filing, Nike said under an agreement with the Labor Department, it was permitted to use diverse slates to address "substantial" disparities in its ranks and to broaden the funnel of qualified candidates applying to open positions. President Trump has since rescinded the 1965 executive order that paved the way for such agreements. Nike says it no longer has any diverse slate practices or guidelines in effect.

Discriminatory or a tool to fight discrimination?

As CEO of the consulting firm Working Ideal, Pamela Coukos advises companies on hiring practices. She has not backed away from her stance that diverse candidate slates can help create fair and inclusive workplaces.

"Think about why a lot of these policies were put in place," Coukos says. "Often because there was a history of unequal access — particularly to leadership positions."

Coukos says diverse candidate slates can help employers identify barriers keeping people out of jobs. If an employer ends up with only white, male candidates in the final rounds of interviews, perhaps it's because they're not recruiting broadly, or because there's a requirement in the job posting that's not actually needed for the job.

"Or just because we assume that somebody who went to a particular school or had a particular prior job is, per se, going to be better than somebody else who has a different background," she says.

Coukos' co-founder at Working Ideal, Cyrus Mehri, was one of architects of the Rooney Rule. Speaking to NPR's Michel Martin in 2022, he said fair competition was his guiding principle.

"You should be able to look at who's the best by getting people in the process," he said.

In a May 1 letter to Florida's attorney general, NFL Executive Vice President and General Counsel Ted Ullyot echoed that theme.

"For a limited subset of vacancies, the Rooney Rule expands the pool of applicants," Ullyot wrote. "Diversity of the candidate pool, both on the field and off, is… a critical part of the NFL's success."