The EEOC publishes new Q&A addressing DEI-related discrimination

The new guidance provides the EEOC’s position on when diversity, equity, and inclusion (DEI) initiatives violate Title VII of the Civil Rights Act of 1964 (Title VII). The guidance states that DEI-related practices may be unlawful under Title VII if they involve employment actions “motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.”

In particular, the guidance states that Title VII prohibits disparate treatment based on protected characteristics, and that “prohibition against disparate treatment, including DEI-related disparate treatment, includes disparate treatment” not only with respect to hiring, firing, promotion, and compensation, but also with respect to other terms, conditions, and privileges of employment such as:

• Access to or exclusion from training (including training characterized as leadership development programs). 
• Access to mentoring, sponsorship, or workplace networking/networks. 
• Internships (including internships labeled as ‘fellowships’ or ‘summer associate’ programs). 
• Selection for interviews, including placement or exclusion from a candidate ‘slate’ or pool.
• Job duties and or work assignments.

The guidance states that employee affinity groups (sometimes called employee resource groups) can be potentially problematic if membership in such groups is limited by race, sex, or another protected characteristic. Similarly, the guidance cautions against providing segregated training or programming, “even if the separate groups receive the same programming content or amount of employer resources.” The guidance also requires employers to ensure “employees of all backgrounds . . . have equal access to workplace networks” and mentoring opportunities, and that training and mentoring is provided to workers “of all backgrounds.” The EEOC also cautions against asking applicants for voluntary self-identification about their demographics, stating in a footnote that pre-employment questions about protected class status can suggest that this status “will be used as a basis for making selection decisions.” The guidance also states that “depending on the facts, an employee may be able to plausibly allege or prove that a diversity or other DEI-related training created a hostile work environment.” 

The EEOC states that an employer cannot justify taking an employment action based on race, sex, or another protected characteristic because of a customer or client preference, or because the employer has a business necessity or a business interest in “diversity and equity” such as “perceived operational benefits.”

The EEOC’s guidance comes roughly two months after President Trump issued Executive Order 14173, which set forth steps that the Federal government intends to take to end “illegal DEI” policies, including requiring Federal contractors and grantees to certify that they do not “operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws” and that compliance is “material” within the meaning of the False Claims Act, 31 U.S.C. § 3729, et seq. Although the certification provisions were enjoined for several weeks, as of the date of this alert, the injunction order was stayed pending appeal. 

Employers – and particularly Federal contractors and grantees – should carefully review the EEOC’s guidance in vetting their programs, policies, and practices, particularly if they are asked by a Federal agency to sign a certification.

For more information regarding the EEOC guidance or the Federal government’s approach to DEI, please contact one of the authors of this article or a Hogan Lovells lawyer with whom you work. 

In addition, we have written extensively about these Executive Orders, which you can find on the right-hand side of this screen.

Authored by Mike DeLarco, George Ingham, Michelle Roberts Gonzales, and Heather McAdams.