EEOC Defines Unlawful DEI | CDF Labor Law LLP

Yesterday, the Federal Equal Employment Opportunity Commission published its guidance entitled: What You Should Know About DEI-Related Discrimination at Work.

While the term “illegal DEI” has been discussed at length over the last two months, including in various Executive Orders, this is the first time that an attempt has been made by the Trump administration to define it and publish a definition.

In the EEOC publication, which acts as an FAQ, the EEOC explains the contours of prohibited DEI as follows:

EEOC Definition of Prohibited DEI

Among other things, Title VII bars discrimination (“disparate treatment”) against applicants or employees in hiring, firing, compensation, or any term, condition, or privilege of employment. The prohibition against discrimination applies to a wide variety of aspects of employment. In order to allege a colorable claim of discrimination, workers only need to show “some injury” or “some harm” affecting their “terms, conditions, or privileges” of employment.

The prohibition against disparate treatment, including DEI-related disparate treatment, includes disparate treatment in:

• Hiring
• Firing
• Promotion
• Demotion
• Compensation
• Fringe benefits
• Access to or exclusion from training (including training characterized as leadership development programs)
• Access to mentoring, sponsorship, or workplace networking/networks
• Internships (including internships labeled as “fellowships” or “summer associate” programs)
• Selection for interviews, including placement or exclusion from a candidate “slate” or pool;
• Job duties or work assignments.

Title VII also prohibits employers from limiting, segregating, or classifying employees or applicants based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities. This prohibition applies to employee activities which are employer-sponsored (including by making available company time, facilities, or premises, and other forms of official or unofficial encouragement or participation), such as employee clubs or groups. In the context of DEI programs, unlawful segregation can include limiting membership in workplace groups, such as Employee Resource Groups (ERG), Business Resource Groups (BRGs), or other employee affinity groups, to certain protected groups.

Unlawful limiting, segregating, or classifying workers related to DEI can arise when employers separate 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. Employers instead 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 also should ensure that “employees of all backgrounds…have equal access to workplace networks.”

The EEOC further explained that DEI considerations of race, sex, or another protected characteristic does not have to be the exclusive (sole) reason for an employer’s employment action or the “but-for” (deciding) factor for the action for the DEI to be illegal. An employment action still is unlawful even if race, sex, or another Title VII protected characteristic was just one factor among other factors contributing to the employer’s decision or action.

The EEOC also explained that if an employer cannot justify taking an employment action based on race, sex, or another protected characteristic because the employer has a business necessity or interest in “diversity,” including preferences or requests by the employer’s clients or customers.

Finally, the EEOC also sanctioned DEI-related harassment claims explaining that “an employee may be able to plausibly allege or prove that a diversity or other DEI-related training created a hostile work environment by pleading or showing that the training was discriminatory in content, application, or context. In cases alleging that diversity trainings created hostile work environments, courts have ruled in favor of plaintiffs who present evidence of how the training was discriminatory (for example, in the training’s design, content, or execution) or, at the motion-to-dismiss stage, who make plausible allegations that explain how the training was discriminatory. For this portion of the Guidance, the EEOC cites to its own briefs submitted in connection with a contested lawsuit.

DOJ Partnering With EEOC On DEI Eradication and Enforcement

This is not the only publication issued yesterday The EEOC and DOJ have also jointly published an information sheet for employees explaining to job applications and employees what illegal DEI looks like and what to do if they recognize DEI in their workplaces or prospective workplaces.

Tips for Employers

Now that the EEOC has outlined what constitutes illegal DEI, employers should use these guidelines in reevaluating their current DEI programs to determine if they are inconsistent with the EEOC’s definition of DEI, and, if so, consider what actions to take as a result. 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. It recently commenced an investigation into 20 large law firms’ DEI practices. It remains unclear what the courts will do with the EEOC guidelines and whether courts will interpret Title VII consistent with the EEOC. This is an emerging and complicated issue and California employers should be looking closely at their DEI policies with experienced legal counsel.