EEOC and DOJ Publish Guidance on Discrimination Related to DEI Actions
Two guidance documents have been released, one directed at employees who belive they have experienced "unlawful discrimination related to ‘diversity, equity, and inclusion." The documents outline the steps for employees to bring charges against employers and answer common questions employees may have.
The guidance provides details for employers in order to avoid a DEI related discrimination charge. A few key take always are; (1) Filing a Lawsuit Requires an EEOC Charge First: Individuals who believe they’ve experienced DEI-related discrimination at work must first file a charge with the EEOC before pursuing a Title VII lawsuit in federal court; skipping this step means they cannot receive a “right to sue” letter.
(2) Title VII Protects All Workers Equally: The law prohibits discrimination based on race, sex, and other protected characteristics for all individuals, regardless of whether they are in a traditionally underrepresented group—there is no higher burden of proof for so-called “reverse discrimination.”
(3) Employers Cannot Justify DEI-Based Decisions Using Business Necessity or Client Preference: Title VII bars employment actions motivated in whole or in part by protected characteristics, even if driven by client preferences or diversity goals, and does not permit exceptions based on perceived business benefits.
(4) DEI Practices Can Be Unlawful if They Segregate or Favor Certain Groups: DEI initiatives that limit access to programs like training, mentoring, or networking based on race, sex, or other protected traits may violate Title VII, even if the programming is equal in content or intent.
(5) Employees Are Protected from Retaliation and Hostile Work Environments: Title VII shields employees who oppose unlawful DEI practices or participate in discrimination investigations, and employers may be liable if DEI trainings or policies create a hostile work environment based on protected characteristics.
As various Executive Orders and guidance related to DEI is released and litigated, employers will find themselves in a tight space. Employers should take the opportunity to review any DEI related policies, programs, and language and seek legal counsel on what language and policies need to be adjusted or removed.
Employees who believe they have been discriminated against due to DEI&A programs can use these guidance documents to determine next steps for filing a wrongful employment action suit.