The Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) announced the release of two technical assistance documents focused on “educating the public about unlawful discrimination related to ‘diversity, equity, and inclusion’ (DEI) in the workplace” and by any entity covered by Title VII of the Civil Rights Act of 1964 (Title VII). Per the EEOC’s press release, under Title VII “DEI initiatives, 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 or applicant’s race, sex, or another protected characteristic.” Other examples of unlawful DEI include:
- Limiting membership in workplace groups, such as Employee Resource Groups (ERG) or other employee affinity groups, to certain protected groups; and
- Separating employees into groups based on race, sex, or another protected characteristic when administering DEI or other trainings, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources
To help educate the public about how well-established civil rights rules apply to employment policies, programs, and practices—including those labeled or framed as “DEI”—the EEOC and the DOJ published a joint one-page technical assistance document entitled, “What To Do If You Experience Discrimination Related to DEI at Work.” The EEOC also released a longer question-and-answer technical assistance document, “What You Should Know About DEI-Related Discrimination at Work.” This document encourages victims of unlawful DEI to file EEOC charges. It makes clear that the protections of Title VII are not restricted to members of a minority group and that “Title VII’s protections apply equally to all workers. Different treatment based on race, sex, or another protected characteristic can be unlawful discrimination, no matter which employees or applicants are harmed.” It goes on to explain that Title VII applies to people who are not employees, including: “applicants, and training or apprenticeship program participants” and potentially “interns.” Entities against whom complaints may be filed regarding unlawful DEI include: “employers with 15 or more employees; employment agencies (including staffing agencies); entities which operate training programs (including on-the-job training programs); and labor organizations (like unions).” The EEOC flatly rejects the notion that an employer or other entity covered by Title VII may “justify taking an employment action based on race, sex, or another protected characteristic because the employer has a business necessity or interest in ‘diversity,’ including preferences or requests by the employer’s clients or customers.”
The EEOC and DOJ state that “[b]oth documents are based on Title VII, existing EEOC policy guidance and technical assistance documents and Supreme Court precedent.”