March 19, 2025
EEOC & DOJ Provide Guidance on Unlawful DEI-Discrimination
On March 19th, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) announced the release of two technical assistance documents focused on educating the public about unlawful discrimination related to “diversity, equity, and inclusion” (DEI) in the workplace.
One is a joint one-page technical assistance document, “What To Do If You Experience Discrimination Related to DEI at Work.” The EEOC also released a longer question-and-answer technical assistance document, “What You Should Know About DEI-Related Discrimination at Work.” Both documents are based on Title VII, existing EEOC policy guidance and technical assistance documents, and Supreme Court precedent.
I find the information is not new, it is a reminder of what the law has always provided. It reads, in part, “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.”
I find this to be quite different from an employer taking steps to increase the diversity of its applicant pool while ensuring that the selection decision is not based on any protected status. We see, read, and hear about employers getting this wrong time and again.
If you have not read the documents, you may want to do so. As I often say, even though a federal agency guidance may not be mandatory, when it takes the time to tell employers what they think we should do, I don’t want to be the test case.
Talk to your company’s legal counsel about these related matters and how they might impact your organization’s DEI policies, practices, and/or programs.
