EEOC Documents Outline Ways DEI Can Be ‘Illegal’

Throughout the spate of lawsuits that have cropped up in response to President Donald Trump’s executive orders on diversity, equity and inclusion (DEI), one constant theme from plaintiffs and case judges has been … “What the heck is ‘illegal’ DEI in employer programs and practices?”

One federal judge even stated in a case opinion letterOpen in a new tab, “The administration has declared ‘DEI’ to be henceforth ‘illegal’ … whatever the administration might decide that means. … But the challenged orders do not define any of the operative terms, such as ‘DEI,’ ‘equity-related,’ ‘promoting DEI,’ ‘illegal DEI,’ ‘illegal DEI … policies,’ or ‘illegal discrimination or preferences’ — let alone identify the types of programs or policies the administration considers ‘illegal.’”

To address some of the confusion, the U.S. Equal Employment Opportunity Commission (EEOC) on Wednesday, March 19, released two technical documents directed toward American workers and applicable to employers. Both outline how DEI relates to and diverges from federal antidiscrimination law.

According to the new EEOC guidance, “Diversity, equity and inclusion (DEI) is a broad term that is not defined in Title VII of the Civil Rights Act of 1964Open in a new tab (Title VII). Title VII prohibits employment discrimination based on protected characteristics such as race and sex. Under Title VII, DEI initiatives, policies, programs or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated — in whole or in part — by an employee’s or applicant’s race, sex or another protected characteristic. … Different treatment based on race, sex or another protected characteristic can be unlawful discrimination, no matter which employees are harmed. Title VII’s protections apply equally to all racial, ethnic and national origin groups, as well as both sexes.”

The one-page technical document “What Can DEI-Related Discrimination Look Like?Open in a new tab” includes instances where such discrimination may occur, including:

• Disparate treatment (in hiring, promotion, compensation, fringe benefits, etc.)
• Limiting, segregating and classifying (e.g., limiting membership in workplace groups, such as employee resource groups or affinity groups, to certain protected groups)
• Harassment (e.g., the document states, “Depending on the facts, DEI training may give rise to a colorable hostile work environment claim.”)
• Retaliation (e.g., “Reasonable opposition to a DEI training may constitute protected activity.”)

The ancillary technical document “What You Should Know About DEI-Related Discrimination at WorkOpen in a new tab” provides answers to 11 questions, such as:

• “Do Title VII’s protections only apply to individuals who are part of a ‘minority group,’ (such as racial or ethnic minorities, workers with non-American national origins, ‘diverse’ employees or ‘historically under-represented groups’), women or some other subset of individuals?”
• “Can an employer justify taking an employment action based on race, sex or another protected characteristic because the employer has a business necessity or interest in ‘diversity,’ including preferences or requests by the employer’s clients or customers?”
• “Does Title VII protect employees who oppose unlawful policies or practices, including certain DEI practices or trainings?”
• “When is a DEI initiative, policy, program or practice unlawful under Title VII?”

For the last bulleted question, the EEOC answer includes, “Unlawful limiting, segregating or classifying workers related to DEI can arise when employers separate workers into groups based on race, sex or another protected characteristic when administering DEI or any trainings, workplace programming or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources. Employers instead should provide ‘training and mentoring that provides workers of all backgrounds the opportunity, skill, experience and information necessary to perform well and to ascend to upper-level jobs.’ Employers also should ensure that ‘employees of all backgrounds … have equal access to workplace networks.”

Trump Removes Two Remaining Democrats on FTC

President Trump on Tuesday, March 18, fired two Democratic commissioners at the U.S. Federal Trade Commission in another major test of regulatory agency independence.

The FTC enforces consumer protection and antitrust laws, and over the past year has been embroiled in a legal debate over whether it has the authority to create workplace rules such as a ban on noncompete agreements. The commission has a bipartisan structure where no more than three of the five commissioners can come from the same political party. With the firings of Alvaro Bedoya and Rebecca Kelly Slaughter, and the previous resignation of Joe Biden-appointed chair Lina Khan, the FTC has just two members, Republicans Andrew Ferguson (who Trump appointed as chair on Jan. 20) and Melissa Holyoak.

Bedoya and Slaughter plan to file lawsuits to reverse the firings. “This is corruption, plain and simple,” Bedoya said in a statement on XOpen in a new tab. Slaughter said in a statement: “The President illegally fired me from my position as a Federal Trade Commissioner, violating the plain language of a statute and clear Supreme Court precedent. Why? Because I have a voice. And, he is afraid of what I’ll tell the American people.”

By firing the FTC commissioners, and previously firing members of other regulatory agencies (e.g., the National Labor Relations Board, the EEOC), Trump and his administration are seeking to overturn “Humphrey’s Executor,” a 1935 Supreme Court ruling that protects appointed workers in independent agencies from at-will firing.

Editor’s Note: Additional Content

For more information and resources related to this article, see the pages below, which offer quick access to all WorldatWork content on these topics:

• Equitable and Diverse Workplaces
• Total Rewards
• Organizational Performance