The U.S. Equal Employment Opportunity Commission and the U.S. Department of Justice put out two guiding documents about “unlawful discrimination” related to diversity, equity and inclusion at work on March 19.
Noting that DEI programming has become more prominent, EEOC said that widespread adoption of such initiatives “does not change longstanding legal prohibitions against the use of race, sex, and other protected characteristics in employment.”
One technical assistance document, “What To Do If You Experience Discrimination Related to DEI at Work,” pointed to Title VII of the Civil Rights Act of 1964, outlining how DEI-related discrimination can appear through “limiting, segregating and classifying” workers or engaging in harassment or retaliation based on sex or race.
In addition to “unlawfully using quotas or otherwise ‘balancing’ a workforce by race, sex, or other protected traits,” disparate treatment related to the following is also illegal, the document noted:
- Hiring
- Firing
- Promotion
- Demotion
- Compensation
- Fringe benefits
- Exclusion from training, fellowships or mentorship/sponsorship programs
- Selection for interviews (including placement on candidate slates)
While employers have long known of Title VII’s application to employment actions like hiring, promotion and compensation, Lucas’ list of actions like “exclusion from mentoring or sponsorship programs” and “exclusion from fellowships” may indicate new targets for the agency.
Additionally, under this new document, EEOC names employee resource groups as potentially illegal, particularly if they limit membership based on a protected characteristic “in a way that affects [employees’] status or deprives them of employment opportunities.”
In announcing the joint technical assistance, Acting Chair Andrea Lucas said, “In the words of Justice Clarence Thomas in his concurrence in Students for Fair Admissions, ‘two discriminatory wrongs cannot make a right.’”
The second technical assistance document, “What You Should Know About DEI-Related Discrimination at Work,” includes a Q&A portion.
A pattern for the second Trump admin
Two days prior to issuing the DEI-at-work joint guidance, EEOC publicized that Lucas had sent letters to 20 law firms pressing them about their diversity and inclusion programs.
These EEOC actions are in keeping with what the second Trump administration has prioritized so far. From day one, President Donald Trump targeted “illegal DEI,” issuing an executive order to target private-sector programs. Courts — see: recently, Maryland and the 4th Circuit — are still parsing the order’s legality.
Shareholders have become targets for advocacy organizations wanting to change the temperature of public-facing diversity conversations, and “reverse discrimination” suits are gaining traction.
Duane Morris partner Jonathan Segal recently suggested the increasing popularity of reverse discrimination lawsuits were cause for employers to re-assess their DEI programs.
The technical assistance reflects Lucas’ previously stated priority of “rooting out unlawful DEI-motivated race and sex discrimination,” law firm Seyfarth Shaw said in its blog on March 19. The guidance “begins to add some detail to help employers identify DEI practices likely to draw greater EEOC scrutiny.”
What attorneys think of DEI’s future under Trump
“There is no question that the Trump administration and current EEOC will be pursuing aggressive enforcement against businesses that it believes engage in illegal DEI,” said CDF Labor Law in a Thursday post.
“It remains unclear what the courts will do with the EEOC guidelines and whether courts will interpret Title VII consistent with the EEOC,” it said, calling the Trump administration’s approach to DEI “an emerging and complicated issue.”
On Ogletree Deakins’ blog, Nonnie L. Shivers, a managing shareholder for the firm, said that while it’s “too early to tell what the ultimate outcome” of the lawsuits pertaining to Trump’s executive orders will be, employers should review the EEOC-DOJ joint guidance to “understand the EEOC’s interpretations and likely enforcement activity.”
