In March, the U.S. Equal Employment Opportunity Commission (EEOC) released two technical assistance documents on the subject of discrimination related to diversity, equity and inclusion (DEI) at work.

These documents are informal guidance that show how the agency may approach what it considers to be illegal DEI activities by employers.

In a press release announcing the documents, the agency states that they are intended 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.’”

These documents may help clear up unanswered questions brought up by executive orders President Trump has issued that targeted both private and public sector DEI programs.

*The first piece of guidance is a one-page document issued jointly with the Department of Justice entitled “What to Do If You Experience Discrimination Related to DEI at Work.”

*The second is a longer document in a question-and-answer format and entitled “What You Should Know About DEI-Related Discrimination at Work.”

In a prepared statement, EEOC Acting Chair Andea Lucas said, “While the public may be confused about what rules apply to DEI, the law itself is clear. And there are some serious implications for some very popular types of DEI programs. These technical assistance documents will help employees know their rights and help employers take action to avoid unlawful DEI-related discrimination.”

Following are some highlights of the Q&A document.

Unlawful DEI

Under Title VII of the Civil Rights Act, “an employer initiative, policy, program, or practice 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 another protected characteristic.”

Title VII bars discrimination against job applicants or employees in hiring, firing, compensation, or any term, condition or privilege of employment. It also prohibits employers from limiting, segregating or classifying employees or applicants based on race, sex, or other protected characteristic in a way that affects their status or deprives them of employment opportunities.

Employers may want to pay attention to specific comments on the following DEI-related areas.

Employee Resource Groups or Affinity Groups

Many employers have employee resource groups (ERGs) or affinity groups that band together employees by common interest or backgrounds, some of which are related to protected characteristics such as race, ethnicity, disability and more.

The guidance says: “In the context of DEI programs, unlawful segregation can include limiting membership in workplace groups, such as Employee Resource Groups (ERG), Business Resource Groups (BRGs), or other employee affinity groups, to certain protected groups.”

Hiring and Employment Decisions

The guidance says that race, sex or any other protected characteristic does not have to be the sole reason for an employer’s employment action or the deciding factor for the action. “An employment action still is unlawful even if race, sex, or another Title VII protected characteristic was just one factor among other factors contributing to the employer’s decision or action.”

In addition, the guidance says that having a business necessity or interest in diversity, such as a client or customer preference, is not a defense for taking an employment action based on race, sex or another protected characteristic.

Training and Mentoring

The document states that it can be unlawful for employers to separate workers into groups based on race, sex, or another protected characteristic when administering DEI or any trainings, workplace programming or other privileges of employment, even if these separate groups receive the same programming content or amount of employee resources.

It goes on to say: “Employers instead should provide ‘training and mentoring that provides workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascend to upper-level jobs.’ Employers also should ensure that ‘employees of all backgrounds . . . have equal access to workplace networks.’”

DEI Training

The document says that “an employee may be able to plausibly allege or prove that a diversity or other DEI-related training created a hostile work environment by pleading or showing that the training was discriminatory in content, application, or context.”

Criticism From Former EEOC Officials

On April 3, ten former EEOC officials, including former EEOC Chair Charlotte A. Burrows, issued a statement addressed to the legal community criticizing the technical document from Lucas. The former officials state that the document “ignores important aspects of applicable law and the reality that proactive efforts are still needed in America’s workplaces to provide equal opportunity for all employees and applicants.”

The former officials address the following areas in the statement.

• Employer’s interest in diversity: It is well-established law employers may have policies that embrace diversity and work to address barriers, the former officials state. “Employers can and do adopt effective and lawful mechanisms to support diversity by advancing equal opportunity for all employees without the use of illegal preferences.”
• DEI training: The former EEOC officials state that it is “very rare” for employees to meet the legal standards necessary to establish that a DEI-related training created a hostile work environment. They go on to say that the courts have been clear that an employee’s “general discomfort” with training focused on race, sex or other protected characteristic is not sufficient to create hostile work environment.
• ERGs: The former officials say the language used in the EEOC document “may unnecessarily heighten employers’ concern about establishing groups that are formed around the goal of sharing common interests and experiences, including those that focus on issues of race gender, ethnicity, religion, veteran status, sexual orientation, gender identity, or disability.” They contend that there is no prohibition on organizing voluntary employee resource groups to address common experiences and provide a supportive environment, but they add that such groups should be open to all employees to ensure that they are fair and nondiscriminatory.

If the document has a chilling effect on efforts to provide equal employment opportunities to qualified employees, “we believe it does a great disservice to employers, their employees, and America’s economy,” the former officials comment.

DEI Labels

Unanswered questions and confusion about how DEI programs are labeled remain.

One recent development is a settlement agreement with four prominent lawsuits announced by EEOC on April 11. As part of the agreement, the firms will “no longer categorize any lawful employment or practices (including those addressing equal employment opportunity, accessibility, or reasonable accommodation for religion, disability, or pregnancy) as DEI.”  The settlement was in response to letters that Lucas sent to these firms and others about their DEI practices. Lucas had sought information about whether their DEI programs “entailed or resulted in” race- and sex-based disparate treatment against white or male employees, applicants and training program participants.

How Should Employers Respond?

The technical guidance is not final, but attorneys and others close to the issue, said employers may want to consider the following steps as they evaluate the legality of their DEI programs.

*Make sure ERGs are open to all employees. While one attorney is quoted by Bloomberg Law as saying that having ERGs based on protected characteristics could lead to an EEOC investigation, others say the best strategy is to ensure that such groups are open to all employees.

*Review DEI training materials.  Although recent claims that DEI training has led to a hostile work environment have generally not held up in court, the recent EEOC guidance may prompt more claims, according to an article by Bloomberg Law.

*Avoid programs such as internships that are open only to women or particular racial groups. This is according to an AP article, quoting an official from CEO Action for Inclusion & Diversity, which is owned by the Society for Human Resource Management (SHRM). The EEOC guidance lists “internships (including internships labeled as ‘fellowships’ or ‘summer associate’ programs),” as one of several examples of employment activities for which disparate treatment is prohibited.

*Cast a wide recruitment net. In their statement, the former EEOC officials said employers should expand the range of sources for candidates by looking for additional outlets to advertise job lists and increasing outreach to areas where they have not previously recruited. They also may want to consider changing requirements, such as a four-year degree, if they find that such requirements create an unnecessary barrier to some candidates.

*Collect data. The former EEOC officials say that gathering and analyzing demographic data on their current workforce and applicant pool is a best practice to ensure compliance with applicable civil rights laws. This includes evaluating hiring, promotion and compensation systems.

Current and former EEOC officials have different interpretations of DEI initiatives. With these additional examples of what to do and what not to do, employers and their service providers can review their initiatives and address any compliance issues.