On March 19, the EEOC released two guidance documents: What To Do If You Experience Discrimination Related to DEI at Work | U.S. Equal Employment Opportunity Commission and What You Should Know About DEI-Related Discrimination at Work | U.S. Equal Employment Opportunity Commission. These “technical assistance documents” do not have the force of law; however, they provide insight into how Acting Chair Lucas and the Trump Administration, think about DEI enforcement. Notable takeaways:

  1. The guidance lists activities that may constitute “DEI-related discrimination,” including taking employment action motivated (in whole or in part) by race, sex, or another protected characteristic, such as exclusion from training, fellowships, mentoring or sponsorship programs, or selection for interviews (including placement on candidate slates).
  2. The guidance warns against “limiting, segregating, and classifying,” noting that prohibited conduct may include:
    • Limiting membership in workplace groups, such as Employee Resource Groups (ERG) or other employee affinity groups, to certain protected groups;
    • 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
  3. The guidance notes that “[d]epending on the facts, DEI training may give rise to a colorable hostile work environment claim” and 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.”
  4. The guidance firmly states that an employer may not 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. It continues, “[n]o general business interests in diversity and equity (including perceived operational benefits or customer/client preference) have ever been found by the Supreme Court or the EEOC to be sufficient to allow race-motivated employment actions.”

In contrast to the conduct discussed above, which the EEOC flags as potentially problematic, the guidance advises that 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.”

This is a constantly developing area and the EEOC and the Trump Administration continue to provide indications of where their enforcement focus is. Employers should continue to monitor the situation and stay on the lookout for future PERKS posts as we issue updates as new information comes in.