EEOC posts vague issuance on "DEI-related discrimination"

The Equal Employment Opportunity Commission (EEOC) had a busy week.

Two days after it sent a letter to 20 law firms requesting documentation of their DEI initiatives, the EEOC on Wednesday provided new “DEI-related discrimination” guidance. However, one lawyer pointed out that the guidance does not change current civil rights laws, and cautioned employers against backing away from DEI too quickly, or too much.

Called “What you should know about DEI-related discrimination at work,” the guidance posits that workers may experience discrimination as the result of “unlawful” DEI initiatives and advises them if they think they’ve experienced “discrimination related to DEI.” It is largely a reminder that Title VII of the Civil Rights Act of 1964 protects against discrimination based on identifying factors including race, gender, and religious affiliation.

“The framing, and its lack of context and nuance, gives this document the impression that it’s not even-handed, and that it is trying to convey that DEI efforts are unlawful,” Katy Youker, director of the economic justice project for the nonprofit Lawyers’ Committee for Civil Rights Under Law, told HR Brew, noting that it’s unclear whether the issuance is binding or enforceable.

“It’s intended to cause a chilling effect and for employers to simply scrap lawful programs for fear that they may run afoul of this guidance,” Youker said, using the guidance around employee resource groups (ERGs) as an example. The EEOC said that “unlawful limiting, segregating, or classifying workers” in the context of ERGs would be prohibited , simultaneously stressing that they must be open to all employees.

“By lumping it [ERGs] into segregation, it’s creating some ambiguity…I think many organizations are going to likely disband their employee resource groups without actually evaluating whether they are unlawful or not,” Youker said. “That will actually lead to less women or employees of color wanting to work at these places, because they don’t feel like there’s a place where they can discuss issues in a safe environment that are coming up for them.”

The EEOC also indicated that some DEI training may “create a hostile work environment,” but that anyone filing a report would have to show how the training was discriminatory under Title VII. Youker said that some DEI training, including harassment training, is meant to help shield employers from potential legal risk. “The EEOC should be encouraging, not discouraging, employers from doing trainings to make the workplace safer and more inclusive, and they have in the past encouraged such trainings.”

Regardless of how the guidance is framed, HR leaders should consider the law before changing their DEI practices, and check in with their general counsel.

“I would implore employers to not roll back their lawful DEI measures, because I think that they’re opening themselves up to litigation risk if they go too far in cutting these programs,” Youker said. “This is all apparently a coordinated attempt to comply with the administration’s executive orders on diversity, equity, and inclusion efforts. And employers should recognize the context in which these documents are coming out, and remember that the law has not changed.”