Employ

01 The The The This article outlines the Guidance and the FAQs, and suggests compliance measures for employers to consider in light of their content.

The Guidance

The Guidance outlines the EEOC’s perspective on employer DEI programs and ways in which they may run afoul of Title VII of the Civil Rights Act of 1964 (“Title VII”), which protects “employees, potential and actual applicants, interns, and training program participants.” While the Guidance acknowledges that the term “DEI” is undefined, it cautions that DEI initiatives “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 race, sex, or other protected characteristic.” The Guidance then provides a non-exhaustive list of actions that may constitute “DEI-related discrimination,” including, but not limited to:

Implementing “quotas” or “otherwise ‘balancing’ a workforce by race, sex, or other protected traits;”

• Excluding individuals from training, fellowships, mentoring or sponsorship programs on the basis of their protected characteristics;
• Selecting candidates for interviews, including placement on candidate slates, based on their protected characteristics;
• Limiting membership in workplace groups, such as employee resource groups (“ERGs”) to certain protected groups; and
• Separating employees into groups based on protected characteristics 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.”
• The Guidance further states that “DEI training” may constitute “a colorable hostile work environment claim,” and advises employers that “

easonable opposition to a DEI training” may constitute protected activity giving rise to a retaliation claim so long as “the employee provides a fact-specific basis for his or her belief that the training violates Title VII.”[r]The FAQs

Like the Guidance, the FAQs are aimed at shedding light on what may constitute “DEI-related discrimination” in the workforce. The The FAQs further clarify that the EEOC will not require a higher showing of proof for so-called “reverse discrimination” claims, or claims that an employer has discriminated against a majority group; indeed, the FAQs go on to state that, in the EEOC’s view, “there is no such thing as ‘reverse’ discrimination, there is only discrimination.”

The FAQs, like the Guidance, fail to define “DEI,” but provide examples of “DEI initiatives, policies, programs or practices” that may be unlawful under Title VII. These The The FAQs state that employers may not legally justify any of the foregoing actions (or other forms of DEI-related discrimination) based on business necessity, “an interest in diversity,” or client, customer, or co-worker preference.

Last, the FAQs address employer DEI training, which the EEOC states may constitute workplace harassment when it is “discriminatory in content, application, or context.” To the extent that such training is discriminatory in “design, content, or execution,” it may give rise to a hostile work environment claim. The Finally, the FAQs echo the Guidance’s confirmation that opposing unlawful DEI training (or other DEI-related discrimination) may constitute protected activity that gives rise to a claim for retaliation.

What Should Employers Do Now?

The Guidance and FAQs represent a dramatic shift from past EEOC priorities, and create new compliance concerns for employers. Both Employ These We