The Equal Employment Opportunity Commission (“EEOC”), jointly with the U.S. Department of Justice (“DOJ”), issued two technical assistance documents addressing DEI-related discrimination in the workplace. The EEOC released a document entitled “What You Should Know About DEI-Related Discrimination at Work” in a question-and-answer format and the EEOC and DOJ jointly issued a one-page document entitled “What To Do If You Experience Discrimination Related to DEI at Work.”

The EEOC’s question-and-answer document outlines the steps employees can take if they believe they have experienced discrimination related to DEI initiatives in the workplace. It emphasizes that Title VII protections apply to all workers, not just “individuals who are part of a ‘minority group’.” The guidance notes that DEI-related discrimination protections extend to applicants, participants in training or apprenticeship programs, and potentially interns.

In response to the question, “When is a DEI initiative, policy, program, or practice unlawful under Title VII?” the document states that such initiatives “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 other protected characteristic.” The EEOC emphasizes that Title VII prohibits discrimination through disparate treatment, “including DEI-related disparate treatment” across a wide range of listed employment actions:

• Hiring
• Firing
• Promotion
• Demotion
• Compensation
• Fringe benefits
• Access to or exclusion from training
• Access to mentoring, sponsorship, or workplace networking/networks
• Internships
• Selection for interviews, including placement or exclusion from a candidate pool
• Job duties or work assignments

The document also notes that Title VII prohibits “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 Resource Groups, Business Resource Groups, or affinity groups where membership is limited based upon membership in a protected class. Additionally, it prohibits separating workers “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.”

Further, the EEOC clarifies that an employer’s business interest in diversity does not justify taking an employment action based on race, sex, or another protected characteristic. It also notes that, in certain circumstances, DEI-related training may create a hostile work environment and that opposing a DEI training may be deemed protected activity under the law. 

The document entitled “What To Do If You Experience Discrimination Related to DEI at Work” emphasizes that DEI is a broad concept and highlights that certain DEI policies and practices may be unlawful, including, but not limited to, when they involve “unlawfully using quotas or otherwise ‘balancing’ a workplace by race, sex, or other protected traits.” The document reiterates the key points addressed in the question-and-answer document and provides a QR code and direct contact information for the EEOC for workers to contact if they suspect they have experienced DEI-related discrimination.

As expected, DEI programs and practices remain a priority for this administration and continue to be closely scrutinized. We are monitoring developments as they arise. Companies should consider auditing their DEI programs and practices with the assistance of legal counsel to ensure compliance and mitigate potential risks.

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If you have questions or would like additional information, please contact our Labor & Employment attorneys or the primary EGS attorney with whom you work.