America First Legal Files Federal Civil Rights Complaint Against Shake Shack For Illegal Race and Sex Discrimination

WASHINGTON, D.C. – Today, America First Legal’s (AFL) Center for Legal Equality filed a federal civil rights complaint with the U.S. Equal Employment Opportunity Commission (EEOC) against Shake Shack, Inc. for alleged race and sex discrimination conducted under the guise of so-called “Diversity, Equity, and Inclusion” (DEI). AFL also sent a cease and desist letter to the CEO and Board of Directors of Shake Shack, demanding the company end its discriminatory employment practices in violation of the Federal Civil Rights Act of 1964. 

The Supreme Court’s recent ruling in Muldrow v. City of St. Louis held that employers violate Title VII when they change the terms or conditions of employment because of race, sex, religion, or national origin. In these contexts, the employee need not suffer “significant” negative effects so long as the affected individual establishes that he or she has suffered at least some degree of harm. Furthermore, the Court held that “terms and conditions” of employment in the Title VII context are not limited to the “narrow contractual sense,” which opens up Title VII to include transfers, changes in assignments or responsibilities, and other work-related identifiable harms that are motivated by the prohibited characteristics.

Shake Shack appears to be discriminating on the basis of race and sex to promote its radical DEI agenda. To that end, it has established diversity goals as it aims to unlawfully consider protected characteristics of applicants, employees, and even its Board of Directors. Shake Shack filed a Proxy Statement with the SEC in May 2023 in which it described its “5-Year Diversity Targets” that focus attention on “women and people of color specifically” as the Company looks to “match the demographics of [its] workforce and the country at large.”

Specifically, “[b]y 2025, we are targeting 50% of our Shack leadership and 30% of our home office leadership roles to be filled by people of color…”

Shake Shack further explains that the Board’s “overall diversity” is a “significant consideration in the director nomination process.” To that end, Shake Shack monitors the diversity of its board by tracking the race and ethnicity – and gender identity – of its members. 

Shake Shack defines “Diversity” as “race, ethnicity, gender, geography, sexual orientation, age, nationality, religious beliefs, socio-economic status, physical and/or mental capabilities” and even admits that these protected characteristics are one of the “Additional Selection Criteria” it considers when evaluating of candidates for its Board of Directors. 

These unlawful workforce diversity goals date back to at least 2021:

In June 2023, Shake Shack shared an update on its DEI goals titled “Our Continued Action In Workplace, Diversity, Equity and Inclusion, Supply Chain and Sustainability Initiatives.” “Since establishing our 2025 diversity goals, we’ve increased the representation of women and people of color in Shack leadership by 33% and 18%, respectively. Our continued focus on the attraction, development and retention of diverse leadership moves us closer toward achieving our broader goals.”

This week, Shake Shack published its 2023 Stand for Something Good report which describes its sustainability and diversity initiatives through the lens of race, color, national origin, and sex:

Shake Shack has committed to “implementing strategies that attract diverse talent” and “continue[s] to explore new recruiting channels and partnerships to engage diverse talent.” 

In this recent report, Shake Shack reiterates targeting a specific race, color, and sex-based workforce makeup:  “By 2025, we are targeting 50% of Shack Leadership and 30% of Home Office Leadership roles filled by people of color, while also achieving gender parity across all leadership roles.”

Shake Shack provides “curated resources to support team members who transition at work” and has programs that specifically “highlight[] over 30 Shake Shack women” and “advance gender equality and empower all women and girls,” including maintaining a “women’s leadership development” program.

In June 2023, Shake Shack shared its previous version of the Stand for Something Good report 

In the report, Shake Shack described that it targets a workforce “as diverse as the communities we serve” and references the percentage of its workforce that are women or people of color.

Shake Shack also reiterated its commitment to its race and sex-based workforce goals: 

Idris Stover, Shake Shack’s Director of Diversity, Equity & Inclusion, is quoted in the report saying that “[s]haring our five-year targets helps hold us accountable to cultivate a leadership team that is diverse, but more importantly, one that is positioned to support our future growth and success.”

The report lists Shake Shack’s 2022 People Milestones in which Shake Shack celebrated increasing the percentage of both internal promotions and leadership positions going to women and people of color – helping Shake Shack make “progress toward achieving our  five-year diversity targets.”

As part of Shake Shack’s commitment to a “highly diverse workforce at all levels of the company,” Shake Shack “require[d] at least two underrepresented minorities, women, or people of color to be considered and interviewed when hiring for leadership positions in our Shacks and Home Office.” This discriminatory hiring policy is just as unlawful here as in the NFL’s “Rooney Rule” –  which patently violates civil rights law that prohibits hiring practices that limit, segregate, or classify applicants for employment because of race, color, and/or sex.

As with all unlawful discrimination, Shake Shack’s race and sex-based employment practices are harmful and wrong. Title VII protects employees from changes in their employment based on their race, sex, color, religion, or national origin. AFL continues to stand for equal treatment under the law and a country where one’s opportunity is based on skills and achievement, not on immutable characteristics. 

Statement from Gene Hamilton, America First Legal Vice President and General Counsel:

“Americans of all backgrounds and experiences reject the notion that any American should ever be treated differently just because of their skin color. Yet Shake Shack appears to have taken the radical position that instead of hiring based on merit and aptitude, it wants to pick winners and losers based on immutable characteristics they can’t control. We will always boldly fight for true equality of opportunity and merit-based principles,“ said Gene Hamilton.

Read the letter to the EEOC here and the letter to the board here.

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Photo Credit: Adobe Stock Images

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