Navigating New EEOC Guidance on Employer DEI Initiatives
On January 20, 2025, President Trump issued Executive Order (“EO”) 14151 titled “Ending Radical and Wasteful Government DEI Programs and Preferencing.” On January 21, 2025, President Trump also issued EO 14173 titled “Ending Illegal Discrimination and Restoring Merit Based Opportunity.” Both EOs instruct federal agencies to take an aggressive stance towards DEI programs and policies of government contractors and private employers, with a specific focus on race and gender.
In response to the President’s directives, the EEOC and DOJ recently announced new guidance on issues that could constitute unlawful discrimination related to DEI in the workplace.
New EEOC Guidance
The new guidance clarifies that Title VII, the federal law that prohibits certain discrimination in the workplace, protects not only employees, but also extends to applicants, and training or apprenticeship program participants. The EEOC and DOJ, provided several key areas that could constitute unlawful discrimination related to DEI in the workplace, thus exposing private employers to liability:
- Excluding, Separating, or Classifying employees—this could include: (1) offering employer-sponsored activities only to certain groups of employees, (2) restricting access to company facilities based on protected characteristics, (3) limiting membership in employee clubs or groups, such as affinity groups, to certain protected groups, and (4) separating employees into groups based on protected characteristics when conducting trainings or workplace programs, even if the separate groups receive the same programming content;
- DEI trainings—While DEI trainings alone do not create a hostile work environment, DEI trainings that contain certain content (such as painting any demographic group in a negative light by referring to any group as “racist” or an “oppressor”) – combined with commentary amongst employees regarding race after the training – can create a hostile work environment;
- “Reverse” Discrimination—The EEOC’s position is that there is no such thing as “reverse” discrimination; there is only discrimination, thus applying the same standard of proof to all discrimination claims, regardless of whether the person asserting the claim is part of the majority or minority group.
With respect to retaliation claims, the new guidance also clarifies that “reasonable opposition” to DEI training may constitute “protected activity” if the employee provides a “fact-specific basis for their belief that the training violates Title VII.”
Next Steps for Employers
There are several actions employers should consider to ensure that that they are not inadvertently opening themselves up to litigation in the DEI space.
When it comes to hiring and promoting employees, it’s imperative to always consider a diverse pool of candidates, including non-minority candidates and to ensure that job posting language is neutral. Refrain from using quotas or designating any position for specific protected classes. While employers can still gather and analyze demographic data to measure workforce composition and identify areas of improvement, expect close scrutiny of any stated goal to hire a specific number of employees from a particular protected class.
With respect to training, it is critical to ensure that DEI trainings do not paint any particular group in a negative light. The best way to do this is to carefully vet any outside consultants to ensure the content of their DEI training complies with these best practices.
As to scholarships, fellowships, and affinity groups, do not limit eligibility requirements to particular protected classes. Monitor scholarship and fellowship recipients to ensure specific groups are not being excluded and open up affinity groups and their events to all employees, regardless of how the employee identifies or their racial/ethnic background.
Any company messaging and communications should focus on facilitating diversity of viewpoints, backgrounds, and experiences, rather than elevating certain racial, religious, ethnic or other protected classes over others. Communications should create a climate of inclusion that embraces all DEI viewpoints.
While corporate DEI programs alone are not inherently “illegal DEI,” they should be reviewed to ensure compliance with federal anti-discrimination laws, especially in light of new EEOC guidance in this emerging area of the law. Because an increase in regulatory scrutiny and litigation is to be expected, it is best to consult outside counsel on best practices and risk assessments.
As always, if you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700 or visit us online at www.brgslaw.com .
Sincerely,