In our recent post on the FCC’s first EEO audit of the Carr administration at the FCC, we expressed surprise that the audit was released, thinking that the Commission might move to revise the EEO rules and put enforcement of the current rules on hold, just as it has done with the Biennial Ownership Reports.  In the remainder of our article, we went on to discuss the audit as if it was simply asking for information to review the FCC’s EEO rules as they have been enforced for the last 20 years.  But thanks to another attorney who more closely reviewed the language of the FCC’s audit letter and alerted me to changes in these letters, we now know that the audits actually go beyond the issues previously reviewed by the FCC – and seek out information about programs that favor one race, ethnicity or gender in hiring and other employment evaluations.  The audits now seem to be aimed in part at seeking out the types of “invidious” DEI programs – Diversity, Equity, and Inclusion — that the current administration has labeled as discriminatory in and of themselves in transactions involving the biggest players in the communications industry.  The FCC now seems to be looking for evidence of these DEI programs at all broadcast stations, just as they are seeking to root out and end these policies in other industries throughout the country.

In looking closely at the new audit letters, the Enforcement Bureau has added four paragraphs requiring the audited station to respond to various DEI questions. First, section 2(b)(vi)(a) of the letter asks about any complaints made by employees either internally to station management or externally to relevant authorities of “any bias, sensitivity or any other matters related to race, color, religion, national origin or sex.”  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.  In the past, only complaints of discrimination that led to disfavoring persons based on those qualities were reported.  Plus, in the past, only complaints to government agencies were reported.  Here, information about internal complaints and how such complaints were dealt with by the station are requested, as is information as to internal station policies of how such complaints should be treated.

The next paragraph, 2(b)(vi)(b) goes further and asks the audited station to report if “any Unit employee(s) has been reprimanded, reclassified, repositioned, demoted, dismissed or otherwise sanctioned for failing to comply with or affirm policies or programs regarding race, color, religion, national origin or sex.”  Again, while the question is not completely clear in its request, it appears to be asking if a station took action against any employee for not complying with station policies – seemingly looking to identify whether any employee has been reprimanded for not complying with DEI policies.

The next question, 2(b)(vii),  goes beyond employment per se to ask if any station policies favor those with particular racial or gender characteristics.  This item requests that the following be provided in response to the audit:  “A copy of any formal or informal agreement, contract, policy, practice, or other document that impose requirements or goals (aspirational or otherwise) regarding race, color, religion, national origin or sex on the Unit, contractors, employees or any third parties providing services on behalf of the Unit.”  That question continues, asking “whether any Unit employees, its contractors or third parties acting on behalf of the Unit are or can be selected, promoted, or terminated as a result of such agreements, contracts, policies or practices.” If employers had polices explicitly favoring parties with particular race, gender, or religious attributes, that policy and whether it was acted on apparently needs to be reported – even if those policies applied to contractors, rather than simply focusing on employees.

And the final new question asks licensees to “List and describe any use by the Unit of race-based hiring databases, and specify the position(s) for which they are used.” It is unclear what these databases would be – though it may be asking if the employment unit was relying on databases listing qualified minority applicants in making its hiring decisions.

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 to be.  For instance, if one employee casually mentions to a supervisor that he thinks that another employee was not satisfactorily performing their job and that they must have been given that position based on their race or gender, does that need to be reported in response to question 2(b)(vi)(a), or is more formality to a complaint required before an obligation arises?  The questions also include religion among the classes where preferences appear to be suspect.  Yet many religious broadcasters have such preferences for members of their own faith, and that has been permitted under prior rules.  Are such preferences now suspect?

Many of these questions are unanswered by an audit letter appearing without prior public input.  In the past, the issues on which the audit questions were based were vetted carefully after rulemaking proceedings where all aspects of the issue were discussed.  We’ve also had significant precedent and litigation over the rules before they were adopted to further refine what information was being requested.  Where new reporting obligations are dropped into these audit letters without this fine tuning or public input, many respondents are likely to be confused.  If you have been audited, these audits should be carefully considered and discussed with your legal advisors to determine how you provide the Commission with the information that they seek. Even if you are not on this audit list, you should be reviewing these letters carefully and considering your station practices, as the next random audit could be coming your way.