After President Trump’s DEI-related Executive Orders and Presidential Acts, employers have grappled with their DEI policies. Employers now have some agency guidance on what the Trump Administration considers illegal DEI practices and potential implications. The documents linked below focus on “educating the public about unlawful discrimination related to ‘diversity, equity and inclusion’ in the workplace.”
The EEOC and DOJ warn employers about DEI policies conflicting with Title VII
The U.S. Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) issued the first guidance document, “What to Do If You Experience Discrimination Related to DEI at Work.” The document summarizes the EEOC’s and DOJ’s positions on employer DEI programs, including their compliance with Title VII of the Civil Rights Act of 1964. The document warns that any employment action motivated by an employee’s protected class may be unlawful.
The guidance offers the following examples of potentially unlawful conduct: “balancing” the workforce, making employment decisions such as discipline or termination, hiring or promotion, or establishing mentoring programs based on protected characteristics.
Additionally, the guidance names Employee Resource Groups (ERGs) that limit, segregate or classify employees as potentially unlawful. The guidance specifically notes “DEI training[s] may give rise to a colorable hostile work environment claim” and “reasonable opposition to a DEI training may constitute protected activity” for the purposes of retaliation.
The EEOC highlights possible areas of discrimination based on DEI
The EEOC also issued a second guidance document, “What You Should Know About DEI-Related Discrimination at Work,” which offers answers to frequently asked questions. Topics include:
- filing a charge based on an employer’s DEI activities
- Title VII protections for majority groups, not just “minority groups”
- protections from DEI-related discrimination for applicants, employees, interns and program participants
- covered employers
- workplace trainings
- the EEOC’s view on DEI initiatives that conflict with Title VII protections
The EEOC takes aim at DEI policies that violate Title VII
The EEOC acknowledges that DEI is not defined under Title VII, nor is a definition provided in either of the guidance documents. The EEOC warns, however, that DEI-related activities will be scrutinized under Title VII standards. The agency stated that “the widespread adoption of DEI does not change longstanding legal prohibitions against the use of race, sex and other protected characteristics in employment.”
Employer takeaways: ensuring compliance with DEI laws
It is imperative that private employers and federal government contractors closely examine their policies and procedures related to diversity, equity and inclusion to comply with federal and state law. As the legal landscape rapidly changes, our labor & employment team is here to assist all employers in ensuring compliance with applicable law.