Last week, the EEOC and DOJ issued a joint technical assistance document providing guidance on unlawful discrimination related to “diversity, equity, and inclusion” (DEI) in the workplace. The guidance, titled “What To Do If You Experience Discrimination Related to DEI at Work,” explains that under Title VII of the Civil Rights Act, DEI-related discrimination is deemed unlawful if employment actions are motivated, even partially, by an employee's race, sex, or other protected characteristics. The guidance provides examples of what such discrimination might include:

Disparate Treatment: DEI-related discrimination can include an employer taking an employment action motivated (in whole or in part) by race, sex, or another protected characteristic. The document notes that Title VII bars discrimination against applicants or employees in the terms, conditions, or privileges of employment, including: hiring, firing, promotions, demotions, compensation, fringe benefits, exclusion from training, exclusion from mentoring or sponsorship programs, exclusion from fellowships, and selection for interviews (including placement on candidate slates).

Limiting, Segregating, and Classifying: Employers are prohibited from segregating or limiting employees in a way that hinders their job opportunities based on protected characteristics. This includes separating employees into groups based on race, sex, or another protected characteristic 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.

Harassment: Unwelcome remarks or conduct based on protected traits that create a hostile or abusive work environment are illegal and can lead to adverse employment conditions. The document states that “[d]epending on the facts, DEI training may give rise to a colorable hostile work environment claim.”

Retaliation: Employers cannot retaliate against employees who engage in “protected activity under the statute, such as objecting to or opposing employment discrimination related to DEI, participating in employer or EEOC investigations, or filing an EEOC charge.” The document further states that “[r]easonable opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII.”

The EEOC also released a separate question and answer guidance titled “What You Should Know About DEI-Related Discrimination at Work.” Notably, the EEOC answers whether DEI training can create a hostile work environment. The EEOC states that “[d]epending on the facts, an employee may be able to plausibly allege or prove that a diversity or other DEI-related training created a hostile work environment by pleading or showing that the training was discriminatory in content, application, or context.” The EEOC further notes that “Courts have held that opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII.” In the case it references, however, the court dismissed a Title VII retaliation claim where the employee alleged he was terminated in retaliation for refusing to complete mandatory online unconscious bias training relating to racial discrimination. The Seventh Circuit held that “[e]ven if [the employee’s] complaints about [the email requiring the training] were protected activity, he failed to demonstrate a causal connection between the complaints and his termination.”

Both guidance were released shortly after the President signed several executive orders targeting DEI practices the administration deems unlawful, and two days after the EEOC announced it would be investigating DEI practices at twenty large law firms. Later last week, the Trump Administration rescinded an executive order targeting a prominent law firm after it agreed to drop DEI policies and provide $40 million in pro bono legal services for the White House.

What does this mean for employers?
On one level, it changes nothing, because discrimination based on race, color, national origin and other protected classifications was and still is unlawful. However, for employers who have affinity groups that may be based on shared characteristics like race or gender or sexual orientation, such affinity groups will bring scrutiny by the EEOC to those employers and could result in possible lawsuits. Similarly, employers providing DEI training could be targeted by the EEOC and therefore need to review their training programs and materials to determine whether they pass muster under the new guidance.

Kemp Smith’s Labor and Employment Department will continue to monitor and update you on DEI guidance and executive orders.