EEOC Issues Clarification on DEI-Related Discrimination

The Equal Employment Opportunity Commission and the Department of Justice has issued a joint press release to provide clarification on unlawful discrimination related to DEI. This is in support of Executive Order 14173 which made frequent reference to “illegal DEI”, however, it did not provide a clear definition of what that encompassed.

The EEOC press release states that moving forward, all DEI initiatives must comply with Title VII of the Civil Rights Act and other anti-discrimination acts. Two support documents were included with the press release, one to help employers avoid DEI-related discrimination by providing more detail on what this means, and a brief FAQ on what to do if an employee is the victim of DEI discrimination.

• What You Should Know About DEI-Related Discrimination at Work  

• What To Do If You Experience Discrimination Related to DEI at Work

What employers need to know:

Title VII protects employees, potential and actual applicants, interns, and training program participants, not just minorities. Discrimination happens when an employment decision is based, even partially, on race, sex, or other protected characteristics. Your lawful DEI program should ensure equal access to employment opportunities to all, without any preferential treatment. According to the supporting documents within the press release, the following behaviors can be described as discrimination.

• Conducting “workforce balancing” by race, sex, or other protected traits. (Note that this is already unlawful under Title VII and should not be an employment practice)

• Disparate Treatment: When an employment decision is based in any way on race, sex, or another protected characteristic. This is also already illegal under Title VII, whether it is DEI-related or not, and applies to the following activities:

  • Hiring or firing

  • Promotions or demotion

  • Compensation or fringe benefit

  • Exclusion from training, mentoring, sponsorship programs, or fellowships

  • Selection for interviews

• Segregating employees by protected characteristics for activities such as employee resource groups, or DEI training, even if the separate groups receive the same content or amount of employer resources

• Title VII prohibits workplace harassment where unwelcome remarks or conduct occurs based on race, sex, or other protected characteristics. Harassment is illegal when it results in an adverse change to a term, condition, or privilege of employment, or it is so frequent or severe that a reasonable person would consider it intimidating, hostile, or abusive. Depending on the facts, DEI training may give rise to a colorable hostile work environment claim. An employee's reasonable opposition to DEI training may be considered a protected activity if they provide a specific, fact-based reason for believing it violates Title VII.

What should employers do in response?

• We recommend all employers do the following to ensure their DEI programs aren’t unlawful and that they do not present any risk of discrimination under Title VII:

• Conduct Regular Reviews of your DEI or equal employment opportunity programs to ensure they align with the current initiative and do not disadvantage any group.

• Provide Training to your management teams and staff on implementing lawful DEI initiatives. Training should focus on Title VII and non-discrimination including implementing strategies for making employment decisions that avoid favoring one group over another.  

• Always consult with legal council when creating, developing or modifying DEI policies to ensure compliance.

It’s important to note that employers cannot create a hostile work environment through DEI-related policies or training. Employees who reasonably oppose discriminatory DEI practices are protected from retaliation. Courts may find DEI initiatives unlawful if they include discriminatory criteria in hiring, promotions, training access, or workplace policies.

While there is still some uncertainty, it is most important that all leadership within your organization understands what could be considered unlawful DEI practices and that they help enforce anti-discrimination practices. A periodic review of all employment policies and procedures should be scheduled to ensure compliance with all federal anti-discrimination laws.

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