The Equal Employment Opportunity Commission (EEOC) has been busy in recent weeks in the diversity, equity, and inclusion (DEI) space, offering further insight into practices and programs likely to be scrutinized following President Trump's DEI-related executive order (EO). As Venable previously indicated, that EO focused on what the administration calls "illegal DEI," without clearly defining the programs or practices that might be unlawful.
Late last month, the EEOC stepped into the void, issuing technical assistance documents that—while citing to guidance and court decisions predating the EO—seem to emphasize the administration's priorities. This guidance came on the heels of the EEOC's letters to a number of law firms several days prior, which further demonstrate the information the EEOC may seek to elicit when investigating DEI-related initiatives.
At heart, the EEOC's guidance takes aim at "different treatment" motivated "in whole or in part" by protected characteristics. It notes that an employment action is discriminatory even if an individual's protected characteristic was not the sole or determinative reason for that employment decision. If an individual's race, for example, motivated the decision at all, the decision is unlawful.
The guidance also emphasizes that any individual can be harmed by "DEI-related discrimination" irrespective of the individual's race, ethnicity, national origin, or sex. It asserts that what has often been called "reverse discrimination" experienced by traditional majority group members is simply actionable discrimination, and that the protections afforded by anti-discrimination statutes do not apply solely to "racial or ethnic minorities" or "historically underrepresented groups."
Thus, the EEOC makes clear that it does not treat majority group members any differently when assessing their discrimination claims. This issue is currently before the U.S. Supreme Court, as certain courts require a majority-group plaintiff to provide additional evidence in support of a discrimination claim to demonstrate that the employer atypically targets majority-group members. At oral argument last month, the justices seemed ready to reject this heightened burden, consistent with the EEOC's position.
Like the EO, the EEOC's guidance takes aim at unlawful quotas or attempts at workforce balancing in the name of fostering workplace diversity. It also emphasizes that discrimination based on race or color due to client or customer preferences, or due to "perceived operational benefits," is simply unlawful.
In its letters to the law firms, the EEOC specifically sought information regarding whether they had set any diversity goals or had any "annual report or plan" relating to goals for workplace "DEI, diversity, [or] demographic representation." The agency also zeroed in on any efforts by firms to staff certain attorneys on matters in order to meet a client's diversity requirements or preferences.
In highlighting particular types of "DEI-related discrimination," the EEOC notes that it would be unlawful for individuals—based on their protected characteristics—to be given access to or excluded from:
- Training opportunities, including "leadership development" opportunities
- "Mentoring, sponsorship, or workplace networking/networks"
- Internships or fellowships
By doing so, the agency signals an intent to focus upon programs that employers may have crafted to promote leadership opportunities and advancement for minority group members. The EEOC emphasizes that training and mentorship should be provided to "workers of all backgrounds" for purposes of advancement. To that end, the letters to the law firms seek a host of demographic and other information relating to all individuals who applied and/or were selected for diversity fellowships, training, and leadership development programs over a period of many years.
Regarding hiring practices, the guidance decries disparate treatment in what has been traditionally termed "diverse slate" procedures, whereby individuals are either included in or excluded from candidate interview pools based on their membership in a protected class. For example, if an employer requires that six of the ten candidates interviewed for a position be female, such a "diverse slate" might result in the exclusion of a similarly qualified male candidate simply because he is male.
The EEOC's letters to the law firms specifically asked the firms to confirm whether they ever indicated, internally or to recruiters, that they were seeking "black, Hispanic, or female candidates, 'diverse' candidates, or candidates of another particular race(s), ethnicities, sex, or another protected characteristic," or that they were not seeking "male or white candidates or candidates of any other particular…protected characteristic."
In asserting that anti-discrimination law prohibits employers from segregating or classifying individuals based on protected characteristics, the EEOC also signals an intent to target employee resource groups, affinity groups, and clubs that receive employer support or meet on company premises, to the extent that they limit membership or access based on protected characteristics.
In its letters to the law firms, the EEOC specifically cited to descriptions of employee resource groups that limit participation based upon protected characteristics, including, for example, a group that "consists of attorneys with backgrounds from South Asian and Middle Eastern nations." The agency's guidance also makes plain that employers cannot segregate by protected classification when offering training, programming, or other employment privileges, even if the segregated groups of employees are presented with similar content or resources.
The guidance also notes that an employer's DEI-related training could itself form the basis for a claim of workplace harassment, based on its content or context. This likely harks back to the administration's critical view of "unconscious bias" training, which it seems to view as often targeting majority group members.
Finally, the EEOC's guidance makes clear that an employee may be successful in bringing a retaliation claim if he or she opposes "unlawful" DEI practices, including opposing DEI training that is unlawful.
Given the foregoing, employers are wise to review any DEI-related practices or procedures with counsel to assess risk. The authors of this article—or any other member of Venable's Labor and Employment Group—are ready to assist in that process.