EEOC and DOJ Release Joint Guidance on “DEI-Related Discrimination” | FordHarrison

The Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) yesterday issued a joint press release announcing new “technical assistance documents” identifying specific Diversity, Equity and Inclusion (DEI) practices that may be “illegal” or “discriminatory” according to the agencies. Although technical assistance documents do not carry the force of law and are non-binding, they offer interpretive guidance and resources regarding application of existing law and a clear signal of agencies’ enforcement policies and priorities.

In the wake of the Trump Administration’s anti-DEI Executive Orders (EOs) issued in January, including EO 14173 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” many employers have been awaiting guidance on the meaning and scope of terms such as “illegal DEI” and “illegal DEIA” used in those executive orders. This is particularly true now, in light of the Fourth Circuit’s recent stay of the Maryland district court’s nationwide injunction, discussed here. The technical assistance documents shed light on some of these questions.

In the press release, Chair Lucas stated, “[w]hile the public may be confused about what rules apply to DEI, the law itself is clear. And there are some serious implications for some very popular types of DEI programs. These technical assistance documents will help employees know their rights and help employers take action to avoid unlawful DEI-related discrimination.”

Specifically, the EEOC and DOJ jointly issued a single-page summary titled “What To Do If You Experience Discrimination Related To DEI At Work.” This guidance provides a review of Title VII of the Civil Rights Act of 1964’s long-standing prohibitions against employment discrimination on the basis of protected characteristics, such as race and sex. It briefly explains the concepts of disparate treatment, harassment and retaliation and outlines Title VII’s prohibitions on “limiting, segregating or classifying employees based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities.” Examples include limiting membership in Employee Resource Groups, or separating employees based on a protected characteristic for trainings or other “privileges of employment.” It reiterates Title VII’s protection of “employees, potential and actual applicants, interns, and training program participants,” and provides a QR code and phone/ASL videophone numbers for contacting the EEOC to file “DEI-related discrimination” charges.

The EEOC also issued a longer FAQ document titled “What You Should Know About DEI-Related Discrimination at Work.” This FAQ elaborates on the topics in the above-linked one-page guidance, highlighting Title VII’s protections of “all workers.” It further confirmed that the EEOC “applies the same standard of proof to all race discrimination claims, regardless of the victim’s race,” as there is “no such thing as ‘reverse’ discrimination; there is only discrimination.”

The EEOC noted that Title VII protects employees, applicants, and training or apprenticeship program participants, and may also apply to interns, depending on the factual scenario. In addition, an employers’ business necessity, an “interest in diversity,” or client/customer preference will not justify employers “taking an employment action based on [any] protected characteristic. It also outlined its view of DEI programs that may constitute “illegal DEI”:

• Initiatives, policies, programs or practices that “involve an employer or other covered entity taking an employment action motivated – in whole or in part – by race, sex or another protected characteristic.”
• Consideration of protected characteristics in granting “access to or exclusion from training,” leadership development training, “mentoring, sponsorship or workplace networking/networks,” internships and fellowships, and interview selections, including “placement or exclusion from a candidate ‘slate’ or pool; or job duties or work assignments.
• Limiting, segregating, or classifying workers in employer-sponsored club or group activities (including by making available company time, facilities, or premises, and “other forms of official or unofficial encouragement of participation”). Unlawful segregation could include limiting membership in Employee Resource Groups, or separating employees by race, sex, or another protected characteristic in “administering DEI trainings, workplace programming, or other privileges of employment” even if the same programming content or resources are ultimately available to the separated groups.
• DEI-related training that includes discriminatory content, application or context.

The Bottom Line

The EEOC and DOJ’s Joint Guidance, along with the EEOC’s FAQs, provide insight into what the Trump Administration considers “illegal” DEI practices. In response, employers should take the following steps:

1. Carefully review employee and business resource group charters and internal communications to ensure that all groups are open to everyone.
2. Evaluate any internships or fellowships that are restricted based on demographic criteria.
3. Provide leadership training opportunities to all employees, even when the training focuses on a specific topic or demographic.
4. Audit pipeline, leadership and mentorship programs to ensure that granting access or exclusions is not based on protected characteristics.
5. Ensure that any diverse slate programs are implemented in compliance with legal requirements, with employment decisions based on merit.
6. Train managers and employees on the importance of understanding and valuing diverse perspectives to promote fair and equitable treatment.
7. Foster a workplace culture where all individuals feel respected, empowered, and included.