New EEO Audit 'Landmines' Appear to Target Broadcaster Diversity Hiring

The letters, sent to 300 stations Aug. 8, request information about all internal and external station employee complaints about “bias, sensitivity or any other matters related to race, color, religion, national origin or sex,” as well as information on whether stations have reprimanded or dismissed employees for “failing to affirm or comply” with station policies related to those categories. Previous EEO audits didn’t include such questions, and they were added with little warning, broadcast attorneys told us. “Before, they were looking to see whether or not there were mechanisms in place to help minorities,” said Fletcher Heald's Frank Montero. “Now they're looking to see whether there are mechanisms in place that hurt the majority. It’s a subtle difference, but it can trip you up.”

Because EEO audits are a routine FCC process and the letters haven’t changed much in decades, several recipients told us they didn’t notice the new questions until Wilkinson Barker broadcast attorney David Oxenford flagged them in a recent blog post. Oxenford himself didn’t notice them initially and had to be alerted by an attorney at another firm, he told us. “Regardless of one’s positions on the merits of DEI programs, the addition of these questions -- without prior public notice or comment on their use -- is troubling as it leaves respondents with some degree of uncertainty about exactly what is being asked and how extensive a response to these questions need[s] to be,” Oxenford wrote.

The FCC didn’t comment, but Chairman Brendan Carr has repeatedly said that the agency will go after licensees' diversity, equity and inclusion programs, which he said represent “invidious discrimination.”

The agency has used mergers as leverage to get concessions from large companies such as Verizon and Skydance on diversity programs, and the EEO audit questions appear to be a way to apply that same pressure to smaller broadcasters and stations not involved in mergers, according to regulatory attorneys. Carr has referenced the FCC EEO rules in his letters warning companies that the agency will scrutinize their DEI programs. NAB didn't comment.

Several broadcast attorneys told us that given the FCC’s current views on diversity, they hadn’t expected the agency to even hold EEO audits under Carr. “We were afraid the commission would just get rid of the audit program,” said David Honig, president emeritus of the Multicultural Media Telecom and Internet Council.

Previous EEO audit letters asked stations for information on any complaints about “unlawful discrimination” involving the station before “any body having competent jurisdiction under federal, state, territorial or local law.” This year's new questions seek information on both internal and external complaints and have expanded the request beyond unlawful discrimination related to race, sex, religion and national origin to “any bias, sensitivity or any other matters” related to those categories.

“While that wording is not the clearest, it appears that this question is looking for complaints alleging that employment decisions were improperly made with a bias or other preferences favoring persons of a particular race, ethnicity, religion or gender,” Oxenford wrote. “In the past, only complaints of discrimination that led to disfavoring persons based on those qualities were reported.”

The letters also tell stations to report any action taken against employees for not complying with or affirming station diversity policies, and they broadly seek information about station policies, informal agreements or even documents “that impose requirements or goals (aspirational or otherwise) regarding race, color, religion, national origin or sex.” The letters also ask if employees or contractors can be selected, promoted or terminated based on such policies and tell stations to describe any of use of “race-based hiring databases.”

Previous EEO letters were “cookie-cutter” and sometimes handled internally by experienced broadcasters, Montero told us. He compared the new questions to "little landmines" and said his firm is warning clients that the latest letters must be handled with caution. “We're having to tell them: ‘Look, this is not the same, right? We have to be very careful with how we answer.’”

Oxenford wrote that the long-standing EEO audit process was based on issues that had been vetted and shaped by rulemakings, precedent and litigation. “Where new reporting obligations are dropped into these audit letters without this fine tuning or public input, many respondents are likely to be confused.”

Diversity of employees in the media industry is important because media portrayals of minorities affect their treatment in real life, said Daiquiri Ryan Mercado, the National Hispanic Media Coalition's director of advocacy. “We see a direct connection between our community being portrayed as criminals or lazy immigrants, and then the kidnappings we're seeing in the streets of D.C. and across the country,” she said, referring to masked Immigration and Customs Enforcement raids.

Broadcast attorneys told us they will be closely watching the outcome of the EEO audits for clues to the FCC’s intent with the new questions. A flurry of enforcement proceedings is possible, but the agency may also be seeking to further chill broadcasters' use of diversity programs, an attorney told us. The Trump administration’s Equal Employment Opportunity Commission previously accused a host of law firms -- including Cooley, Perkins Coie and Hogan Lovells -- of discrimination via their efforts to increase diversity (see 2503180055).

Although EEO audits target a random selection of stations, Oxenford said that even those that aren’t part of this audit should examine the new questions to prepare for when they're included in the next random selection.