On March 19, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ), jointly issued technica
l assistance documents “focused on educating the public about unlawful discrimination related to ‘diversity, equity, and inclusion’ (DEI) in the workplace.”
The first document, issued jointly by the DOJ and EEOC, entitled What To Do If You Experience Discrimination Related to DEI at Work,
encourages individuals to file charges of discrimination with the EEOC if they believe they have experienced DEI-related discrimination. The seco
at You Should Know About DEI-Related Discrimination at Work, is an FAQ-style technical assistance document that generally explains how Title
VII of the Civil Rights Act of 1964 (Title VII) applies to DEI-related discrimination according to the EEOC.
The documents align closely with policy positions and enforcement priorities a
nnounced in President Trump’s various DEI Executive Orders and suggest that the EEOC and its Acting Chair, Andrea Lucas (who was appo
inted to the Commission by President Trump in his first term and who was promoted to the position of Acting Chair by President Trump s
hortly after his recent inauguration), will continue to align the EEOC with the Trump Administration’s policies and views surrounding DEI.
This content was originally published to Wiley’s website as an alert within the Insights section. It is republished here with permission.
The technical assistance documents acknowledge that DEI is a “broad term that is not defined” in Title VII of the Civil Rights Act of
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1964. Notwithstanding the lack of definition in the primary federal law governing employment discrimination in the wo
rkplace, the agencies explain that DEI policies may be unlawful if they are “motiv
ated—in whole or in part—” by an employee’s protected characteristic, such as race
or sex, or if they create quotas or attempt balancing of the workforce based on protected traits.
The documents provide the agencies’ position concerning numerous emp
loyer actions that might create DEI-related discrimination claims, including:
Exclusion from mentorship, fellowship, or internship programs based on protected traits.
Limiting who can join employee resource or affinity groups based on protected traits.
Segregated presentation of trainings, even where the offerings or benefits provided to all participant groups are the same.
DEI trainings that create a hostile work environment based on content, design, or execution of the training.
Retaliating against workers who oppose DEI programs or trainings.
Selection for interviews, including placement or exclusion from a candidate slate or pool based on protected traits (e.g., the “Rooney Rule”).
According to Acting Chair Lucas, “[f]ar too many employers defend certain types of race or sex preferences as good, provided they are motivated by business interests in ‘diversity, equity, or inclusion.’ But no matter an employer’s motive, there is no ‘good,’ or even acceptable, race or sex discrimination.”
The technical assistance documents also detail how to file a charge of discrimination with the EEOC, who may file a charge, and the entities that charges may be potentially filed against. The documents also clarify that the federal anti-discrimination laws protect all workers and not just individuals who are part of a minority group.
