EEOC and DOJ Release Guidance on DEI Programs

The U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Justice (“DOJ) recently issued two guidance documents for employers on workplace diversity, equity, and inclusion (DEI) initiatives.   The guidance explains the respective agencies’ view of how DEI actions can run afoul of anti-discrimination laws.  The press release from the EEOC and DOJ and the two guidance documents are available below.

• EEOC and Justice Department Warn Against Unlawful DEI-Related Discrimination (press release)
• What To Do If You Experience Discrimination Related to DEI at Work
• What You Should Know About DEI-Related Discrimination at Work

The details

The first document What To Do If You Experience Discrimination Related to DEI at Work states that:

“Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on protected characteristics such as race and sex. Different treatment based on race, sex, or another protected characteristic can be unlawful discrimination, no matter which employees are harmed. Title VII’s protections apply equally to all racial, ethnic, and national origin groups, as well as both sexes.”

The guidance document also provides that:

“Diversity, Equity and Inclusion (DEI) is a broad term that is not defined in the statute. Under Title VII, DEI policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s race, sex, or another protected characteristic.  In addition to unlawfully using quotas or otherwise “balancing” a workforce by race, sex, or other protected traits, DEI-related discrimination in your workplace might include the following”, listing of what potentially could be included as DEI-related discrimination, such as:

·      Disparate Treatment

·      Harassment

·      Limiting, Segregating and Classifying

·      Retaliation

Review the guidance document for specific examples within these categories.

The second document, What You Should Know About DEI-Related Discrimination at Work is in the form of frequently asked questions and includes 11 questions that provide guidance on who is protected from DEI-related discrimination, which entities are covered under Title VII, how to file a claim of DEI-related discrimination and what may constitute unlawful DEI-related discrimination.

Review the guidance document for the EEOC’s frequently asked questions and answers.

Next steps

Employers should review their applicable policies and programs and compare them to the guidance documents. Consider consulting counsel with any questions or concerns.