The U.S. Equal Employment Opportunity (EEOC) and the Department of Justice (DOJ) have issued two technical assistance documents entitled: "What You Should Know About DEI-Related Discrimination at Work" and "What To Do If You Experience Discrimination Related to DEI at Work." Although these documents do not establish any new legal rights or causes of action, they clarify employee protections under Title VII of the Civil Rights Act and how anti-discrimination laws operate in the workplace.
What You Should Know About DEI-Related Discrimination at Work
The first guidance document instructs that diversity, equity, and inclusion (DEI) policies and practices may be unlawful. More specifically, it may not be permitted for an employer to take employment action motivated in whole or in part by an employee's or applicant's race, sex, or other protected characteristic.
The federal agency guidance document further instructs employees who have experienced DEI-related discrimination at work to first file a charge of discrimination with the EEOC. The document describes the EEOC administrative process that complainants must undergo before filing a lawsuit under Title VII. Another provision in the document provides specific instructions for federal employees who have experienced DEI-related discrimination, which entails filing a complaint with the federal agency's EEO counselor.
Furthermore, the document emphasizes that anyone, not only members of minority groups, can have valid discrimination claims. It disavows the concept of "reverse discrimination" and states that the EEOC applies the same standard of proof to all race discrimination claims, no matter the race of the complainant. The document also specifies the applicability and scope of Title VII.
The document revisits discrimination/disparate treatment definitions and provides examples of potentially illegal DEI-related discrimination. For example, the document states that "unlawful limiting, segregating, or classifying workers related to DEI can arise when employers separate workers into groups based on race, sex, or another protected characteristic when administering DEI or any training, workplace programming, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources," is illegal under Title VII. The document reminds employers that they cannot claim business necessity, diversity concerns, or even preferences or requests by a client or customer to justify illegal discrimination.
Finally, the document alleges that DEI-related discrimination may create a hostile work environment. Employers also may not retaliate against employees who have raised DEI-related discrimination claims.
What To Do If You Experience Discrimination Related to DEI at Work.
The second guidance document issued by the EEOC and DOJ provides specific instructions about what employees should do if they experience DEI-related workplace discrimination. The document reiterates that employees must avail themselves of the complaint process through the EEOC before they can file a Title VII discrimination lawsuit in court. This provision also notes that the DOJ can file a lawsuit based on an EEOC charge.
The remainder of the document attempts to define illegal DEI as policies, programs, or practices that "involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee's race, sex, or another protected characteristic." The document then defines policies, programs, or practices that might constitute disparate treatment, illegal limitation, segregation, classification, harassment, or retaliation. Depending on the circumstances, the document clarifies that DEI-related policies, programs, or practices might fall within any of the previously mentioned types of illegal discrimination.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
