As we discussed in a previous blog post, within a few days of taking office, President Trump issued an executive order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” The order is aimed at “terminating all discriminatory and illegal preferences” in federal agencies and in the private sector.
Last week, the federal Equal Employment Opportunity Commission (EEOC) released guidance on how to determine if a DEI program is “unlawful.”
According to the EEOC, although the term “DEI” is not used in Title VII of the Civil Rights Act of 1964 (Title VII), certain DEI policies or practices may be unlawful if they result in employment actions motivated – in whole or in part – by any employee’s or applicant’s race, sex, or another protected characteristic. The guidance further specifies that Title VII’s prohibition of “disparate treatment” includes DEI-related disparate treatment in actions such as hiring, firing, promotion, demotion, compensation, access to or exclusion from training, access to mentoring or networking, internships, selection for interviews, and job duties or work assignments.
The EEOC offers the following examples of instances of DEI programs that may violate the law:
- Limiting membership in workplace groups, such as Employee Resource Groups (ERGs), Business Resource Groups (BRGs), or other employee affinity groups, to certain protected groups
- Separating workers into groups based on race, sex, or another protected characteristic when administering DEI or any trainings, workplace programming, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources
Of course, any employment lawyer worth their salt has always taken the position that these kinds of programs are not appropriate and may result in significant employer liability. It’s unclear why the Administration and the EEOC are acting as if this information is somehow new or groundbreaking. But I digress…
A few other highlights from the guidance:
- DEI-related considerations of a protected characteristic are still unlawful even if the protected characteristic was not the sole factor driving the employer’s decision or action.
- There is no “diversity interest” exception to Title VII compliance. So, for example, a business that bases its employment decisions on discriminatory client or customer preference is engaging in illegal discrimination.
- Title VII prohibits retaliation against employees for opposing unlawful employer conduct. Employees may be able to allege a hostile work environment by showing that DEI training was discriminatory in content, application, or context.
- According to the EEOC, employers “should provide ‘training and mentoring that provides workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascend to upper-level jobs.’ Employers should also ensure that ‘employees of all backgrounds … have equal access to workplace networks.”
Never a dull moment…
