Federal Agencies Issue Guidance on Discrimination Related to DEI Programs

On March 19, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ), jointly issued technical assistance documents focused on educating the public about unlawful discrimination related to “diversity, equity, and inclusion” (DEI) in the workplace.

The first document, issued jointly by the DOJ and EEOC, “What To Do If You Experience Discrimination Related to DEI at Work,” aims to educate the public about how civil rights rules apply to employment policies, programs, and practices—including those labeled or framed as “DEI.” The second document, issued solely by the EEOC, “What You Should Know About DEI-Related Discrimination at Work,” is a FAQ-style technical assistance document explaining how Title VII of the Civil Rights Act of 1964 applies to DEI-related discrimination, according to the EEOC.

According to a recent analysis by Olaoluwaposi O. Oshinowo, Savanna L. Shuntich, and Kahlil H. Epps, all from the Washington, D.C.-based law firm Wiley, the documents provide the federal agencies’ position concerning numerous employer actions that might create DEI-related discrimination claims, including:

• Exclusion from mentorship, fellowship, or internship programs based on protected traits.
• Limiting who can join employee resource or affinity groups based on protected traits.
• Segregated presentation of trainings, even where the offerings or benefits provided to all participant groups are the same.
• DEI trainings that create a hostile work environment based on content, design, or execution of the training.
• Retaliating against workers who oppose DEI programs or trainings.
• Selection for interviews, including placement or exclusion from a candidate slate or pool based on protected traits (e.g., the “Rooney Rule”).

To view the guidance documents, visit www.eeoc.gov.

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