By: Jacqueline D. Hopkins, Esq., Employment Law Attorney & Culture Consultant, Loutel Law

Here’s What Employers Should Be Thinking About

Recently, those of us who counsel, teach, or advocate for DEI and organizational culture have shouldered deep frustration with the Equal Employment Opportunity Commission (EEOC). Over the past year, we have seen significant enforcement shifts and policy reversals – including the removal of information on gender identity and LGBTQ discrimination from its website and the withdrawal of previously filed lawsuits on behalf of transgender employees. At the same time, the agency issued a wave of guidance on so‑called “illegal DEI,” signaling a change in enforcement posture rather than any change in the underlying law, as Title VII itself remains unchanged. This week, the EEOC released a National Enforcement Plan formalizing, among other priorities, their commitment to target DEI in the workplace.

Through guidance documents and enforcement messaging, the EEOC has emphasized that workplace programs tied to race, sex, or other protected characteristics may violate Title VII. This is not news, and it certainly doesn’t expand upon, clarify or change the existing law. What it has done is force employers to reevaluate their commitments to DEI. In demonstrations of “complying in advance,” companies have scaled back, restructured, or rebranded their DEI efforts out of concern that routine employment practices like hiring, promotion, and training could be scrutinized through the prism of “illegal DEI.”

For companies that are federal contractors or grantees, the risk of having critical funding pulled as a result of non-compliance is, understandably, a major deterrent. The EEOC messaging around “illegal DEI” has been a steady drumbeat meant to establish – through repetition – the notion that ‘illegal DEI’ is actually a real thing. Predictably, there have been several lawsuits filed throughout the U.S. challenging DEI initiatives like training and recruitment practices as discriminatory, harassing or creating a hostile work environment.

While the courts recognize that these programs could run afoul of anti-discrimination laws, including Title VII, the courts have largely said that DEI programs are not inherently unlawful and that plaintiffs must still meet the legal standards required to prove discrimination, harassment or hostile work environment.

Meanwhile, the Administration, and the EEOC, are advancing a perverse idea of equality that ultimately means less protection for the most vulnerable groups. To boot, we have an EEOC Chair who has been unabashed in her commitment to prioritizing the egos and fragilities of white, straight men above all others. Last year, for example, the Chair posted a message on LinkedIn encouraging white men to file complaints with the EEOC. It has since been removed.

While the EEOC attempts to construct, policy by policy, and lawsuit by lawsuit, a workplace that really does not reflect the reality of our increasingly diverse country, employers have to make a choice about the kind of workplace they want to build or sustain.

For workplace leaders who are committed to culture and fairness, here are some no-nonsense principles to follow while we continue to support each other, imagine and build better systems, and prepare for the inevitable pendulum swing that will occur:

1. Compliance + Common Sense = a defensible DEI program. The idea of “illegal DEI” is misleading. Any workplace practice can be unlawful if it violates anti-discrimination laws. Placing the word “illegal” in front of DEI does not mean (though it suggests) that something is or could be inherently illegal about DEI. Don’t believe the hype.
2. Train your workforce on bias, harassment and discrimination. Not everyone comes to work with the same baseline of awareness, empathy, or exposure. Training fills that gap and reduces risk. Eliminating these efforts creates more problems than it will ever solve.
3. Listen to the workforce. Use feedback tools, climate surveys and focus groups to understand what the workforce needs and wants. Make sure that every employee has an opportunity to participate so that all voices are reflected in the results – and the execution.
4. Collect demographic data. The EEOC has recently proposed eliminating the EEO-1 Report, which is an annual filing requiring certain employers to report workforce demographic data by job category, sex, and race or ethnicity, This data helps employers identify trends, measure representation, and determine where inequities lie within an organization. While companies may not be

required to submit the EEO-1 report in the near future, employers are still permitted to collect the data and should, for all the above reasons.

The EEOC will likely continue to redefine its message and enforce its new priorities. That is the new normal of an administrative change. But the responsibility to build lawful, fair, and equitable workplaces has not changed. Employers still get to decide what values they want to stand for and what kind of workplace they want to build.