Yesterday the EEOC announced the release of its technical guidance on what constitutes Illegal DEI and when an Employers’ Policies, Programs, and Practices Can Violate Title VII of the Civil Rights Act of 1964. 

What does Illegal DEI mean?

In two short publications, the EEOC explained that an employer’s DEI initiatives, policies, programs, or practices may be unlawful if they “involve taking an employment action motivated—in whole or in part—by an employee’s race, sex, or another protected characteristic.” These practices could include setting quotas to “balance a workforce by race, sex or other protected characteristics.” So, while such programs may be well-intentioned, they are illegal DEI. 

Key Areas to Examine in Your Operations:

Hiring / Firing

Promotion / Demotion

Compensation / Fringe Benefits

Job Assignments

Inclusion or Exclusion in Training / Mentoring / Fellowship or other like opportunities  Can you give me an example?

Sure.  If you have an Employee Resource Group (ERG) that is only available to certain protected classes, like, for example, Latina women.

Or you have a mentorship program only for men of color.

The EEOC explains that: “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” is prohibited.

Is it ok to have race, sex, or another protected characteristic be a factor in an employer’s decision?

No. The EEOC’s guidance defines factors of “race, sex or other protected characteristics” as “DEI related considerations.” To be considered unlawful discrimination, DEI related considerations do not have to be the sole or even the “but for” (deciding) factor.  “An employment action still is unlawful even if race, sex, or another Title VII protected characteristic was just one factor among other factors contributing to the employer’s decision or action.” What should employers do now? 

Employers should examine if their policies or processes limit, segregate or classify employees based on race, sex or other protected characteristics in a way that affect their status or favor or deprive on employee over another. 

So to summarize:

As we have consistently advised, Title VII is (and has always been) the law. “Doing DEI” correctly, never violated Title VII or any other laws.  Rather lawful DEI initiatives created equitable, inclusive workplaces where employees felt safe and respected thereby contributing to the company’s success. 

To help educate employees, the EEOC also released a one-page technical assistance document for employees:  “What To Do If You Experience Discrimination Related to DEI at Work.”  Want to know if your workforce and policies are compliant? 

We can help. Loutel is an employment law and business strategy firm that optimizes people and culture for organizational performance while minimizing legal risk. Through two critical areas of expertise, Loutel provides comprehensive employment.