DEI Guidance from EEOC & DOJ
Yesterday, the Equal Employment Opportunity Commission (“EEOC”) released two guidance documents focusing on Diversity, Equity, and Inclusion (“DEI”). The first, entitled “What You Should Know About DEI-Related Discrimination at Work” (the “Q&A”) largely applies general standards from Title VII and related case law to DEI programs in a broad sense, with some specific DEI-related practices highlighted. The second guidance document, “What To Do If You Experience Discrimination Related to DEI at Work” (the “Remedies Document”) was released in conjunction with the Department of Justice (“DOJ”) and provides similar information, but in a more compact form. These guidance documents are consistent with the Executive Orders issued by the Trump Administration earlier this year regarding “illegal DEI” and confirm that examining DEI programs of private sector employers remains a priority of the administration.
What Does the Guidance Say?
Perhaps the most notable portion of the guidance is the EEOC’s lengthy answer to the question, “When is a DEI initiative, policy, program, or practice unlawful under Title VII?” The Q&A notes that an “initiative, policy, program, or practice may be unlawful if it involves an employer or other covered entity taking an employment action motivated—in whole or in part—by race, sex, or another protected characteristic.” The Q&A specifically points to the prohibition under Title VII against “disparate treatment” in any term, condition, or privilege of employment. In addition to prohibiting disparate treatment in hiring, firing, promotion, compensation, job duties, and fringe benefits, the Q&A also highlights areas like training (including leadership development programs), internships (including fellowships), selection for interviews (including placement or exclusion from a candidate “slate” or pool), and access to mentoring, sponsorship or workplace networking/networks as areas where inappropriate disparate treatment could exist. The answer further discusses that Title VII prohibits employers from “limiting, segregating, or classifying employees or applicants” based on protected characteristics. Expanding on that statement, the Q&A notes that actions such as limiting membership in employee resource groups or other affinity groups to certain protected groups and separating individuals based on protected categories during a training, even if all individuals receive the same training, can be unlawful.
The remainder of the Q&A is focused on reminding individuals of how broadly the EEOC views Title VII’s protections, including who is covered and what behavior may be prohibited. For example, it notes that, depending on the facts, employees could potentially raise a hostile work environment claim about the design, content or execution of an employer’s DEI-related training or raise claims for retaliation for opposing DEI training and practices. Employer motives are also discussed. In response to the question about whether an employer can justify an action based on race, sex, or another characteristic because there is a business interest in diversity, including customer preference, the EEOC answers in the negative. Pointing out that customer preference is not a defense to race or color discrimination, the EEOC further asserts that “Title VII does not provide any ‘diversity interest’ exception to these rules. Nor has the Supreme Court ever adopted such an exception.” The Q&A also discusses that DEI-related considerations of protected characteristics will not be excused simply because it wasn’t the “sole or deciding factor” in an employer’s decision, reiterating that the mixed-motive standard applies to analysis of DEI-motivated behavior as well.
Addressing an issue currently under review by the Supreme Court, the Q&A also asserts that individuals who are part of a “minority group” are not required by the EEOC to satisfy a higher showing of proof to demonstrate discrimination. Specifically, the Q&A states “Title VII’s protections apply equally to all workers. . . . The EEOC’s position is that there is no such thing as ‘reverse’ discrimination. The EEOC applies the same standard of proof to all race discrimination claims, regardless of the victim’s race.” A similar sentiment was echoed by Acting Chair Andrea Lucas in the EEOC press release announcing these guidance documents. Noting that “there are some serious implications for some very popular types of DEI programs,” she explained that while the motivations of businesses in adopting these programs may be positive “there is no ‘good’ or even acceptable, race or sex discrimination.”
Where are we now?
In its press release, the EEOC noted that even though DEI policies, programs, and practices have become more prevalent in a variety of institutions, the “longstanding legal prohibitions against the use of race, sex, and other protected characteristics in employment” has not changed. As we have discussed in prior alerts, it is correct that the federal anti-discrimination laws remain the same despite the Executive Orders and subsequent guidance issued. However, the new EEOC guidance documents indicate that the Trump Administration’s focus on applying these legal standards to closely examine DEI initiatives is a continuing priority. Indeed, in the above-referenced press release, Deputy Attorney General Todd Blanche echoed this emphasis stating, “The Department of Justice is committed to ending illegal DEI initiatives, policies, and programs.”
The Executive Orders concerning DEI issued by the Trump Administration continue to be litigated in legal actions brought by groups from both the public and private sectors. A nationwide preliminary injunction of two Executive Orders targeting DEI programs (“Ending Radical and Wasteful Government DEI Programs and Preferencing” and “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”) was lifted last week by the United States Court of Appeals for the Fourth Circuit, pending an expedited briefing schedule for the full appeal of the preliminary injunction. Enforcement of the Executive Orders may now continue while the litigation is pending. This includes the Executive Order directives to government agencies to terminate government “equity-related” grants and contracts, require grantees and contractors to certify that they do not operate “illegal DEI” programs, and investigate compliance with civil rights laws as they pertain to DEI in the private sector. Remaining challenges to these two Executive Orders include lawsuits filed in federal courts in Washington, D.C. (Nat’l Urban League, et al. v. Donald J. Trump), California (S.F. AIDS Found., et al. v. Donald J. Trump), and Illinois (Chi. Women in Trades v. Donald J. Trump). Oral arguments on a pending motion for a preliminary injunction in the D.C. case were heard yesterday and a ruling is expected soon. Similarly, motions for preliminary injunctions have been filed in the cases brought in California and Illinois. Additionally, the plaintiff in the Illinois case filed a motion for a temporary restraining order yesterday, citing imminent harm as a result of the stay of the nationwide injunction granted by the Fourth Circuit last week. We will continue to monitor developments in these cases and any other actions filed challenging the Executive Orders.
Employers must carefully navigate the evolving legal landscape surrounding DEI policies and practices, balancing attention to federal enforcement priorities with maintaining lawful DEI initiatives. Effectively managing business, legal, and financial risks requires a thorough assessment of existing policies and practices against the backdrop of the Executive Orders, the ongoing challenges to them, and existing federal, state and local employment discrimination laws. A privileged audit of an employer’s policies and practices is an important step for uncovering potential risks, maintaining compliance, and deploying a strategy to respond to the changing enforcement landscape. Employers with questions about this new guidance from the EEOC, the status of DEI Executive Orders, or the impacts on their business and employment practices should contact any attorney at the Firm.
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