The battle over diversity, equity and inclusion (DEI) continues, with the release of technical assistance documents from the Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) about unlawful discrimination related to DEI in the workplace, and the U.S. Court of Appeals for the Fourth Circuit reversing the injunction halting enforcement of Executive Orders (EO) issued by President Donald Trump during the first days of his term.
"What To Do If You Experience Discrimination Related to DEI at Work," issued by the DOJ and EEOC, and "What You Should Know About DEI-Related Discrimination at Work," released by the EEOC alone, focus on educating the public about unlawful discrimination related to DEI in the workplace.
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 other protected characteristic, the agencies said.
According to the agencies, DEI policies, programs and practices have become increasingly prevalent in recent years, but the widespread adoption of DEI "does not change longstanding legal prohibitions against the use of race, sex and other protected characteristics in employment."
Both documents are based on Title VII, existing EEOC policy guidance and technical assistance documents, and Supreme Court precedent.
The documents detail what protections Title VII provides and the process employees can follow if they believe they have been discriminated against. Specific to DEI, the documents explain that employers cannot justify taking an employment action based on race, sex or another protected characteristic because of a business necessity or interest in diversity, including preferences or requests by the employer's clients or customers.
According to the guidance, DEI training may give rise to a colorable hostile work environment claim depending on the facts, while limiting membership in workplace groups – such as employee resource groups or employee affinity groups – to certain protected groups may run afoul of Title VII.
In addition, the EEOC's position is that there is no such thing as "reverse" discrimination (in which a member of a majority group alleges discrimination); there is only discrimination. The agency does not require a higher burden of proof for "reverse" discrimination claims.
"Far too many employers defend certain types of race or sex preferences as good, provided they are motivated by business interests in 'diversity, equity, or inclusion,'" Acting EEOC Chair Andrea Lucas said in a statement about the documents. "But no matter an employer's motive, there is no 'good,' or even acceptable, race or sex discrimination."
In other DEI news, the Fourth Circuit granted the federal government's motion to stay the preliminary injunction issued by the district court blocking the enforcement of the EOs issued by President Trump in January.
The first EO, "Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government," mandated that the federal government recognize only two biological sexes, male and female, as determined at conception, while the second, "Ending Illegal Discrimination and Restoring Merit-Based Opportunity," rescinded EO 11246, which for almost 60 years required government agencies to include a provision in government contracts that the contractor agrees not to discriminate against and to take affirmative action to prevent discrimination against any employee or applicant because of certain protected characteristics.
A group of plaintiffs – including the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United and the Mayor and City Council of Baltimore, Md. – filed suit, arguing that the EOs violated their constitutional rights by imposing vague and overbroad restrictions on speech and association, in violation of the First Amendment.
The Maryland district court granted their request for a nationwide injunction, halting enforcement of the EOs, but the Fourth Circuit reversed, with each member of the three-judge panel issuing a separate written opinion.
As a result, the federal government is now free to enforce the EOs, which target DEI-related requirements in federal grants and contracts, "equity-based" grants or contracts and programs described as advancing DEI, while the court considers the appeal on an expedited schedule.
To read "What To Do If You Experience Discrimination Related to DEI at Work," click here.
To read "What You Should Know About DEI-Related Discrimination at Work," click here.
To read the Fourth Circuit decision in National Association of Diversity Officers in Higher Education et al. v. Trump et al., click here.
Why it matters: The technical assistance documents and Fourth Circuit decision are only the latest salvos in the ongoing battle over DEI. Employers should be aware of the changing landscape and stay up to date on the litigation and guidance from the federal government.
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