The Equal Employment Opportunity Commission (EEOC) has released two new technical assistance documents addressing “DEI-related discrimination” in the workplace.
The first document, issued jointly with the U.S. Department of Justice (DOJ), What to Do If You Experience Discrimination Related to DEI at Work, encourages employees to file charges with the EEOC if they believe they have experienced DEI-related discrimination.
The second document, What You Should Know About DEI-Related Discrimination at Work, clarifies the Commission’s position of when DEI initiatives might cross the line into unlawful discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). Under Title VII, employer DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer taking an employment action motivated, in whole or in part, by an employee’s or applicant’s race, sex, or another protected characteristic. Among other things, Title VII bars discrimination (“disparate treatment”) against applicants and employees in hiring, firing, promotion, demotion, compensation, fringe benefits or any term, condition, or privilege of employment, including:
- Access to or exclusion from training (including training characterized as leadership development programs;
- Access to mentoring, sponsorship, or workplace networking/networks;
- Internships (including internships labeled as “fellowships” or “summer associate” programs);
- Selection for interviews, including placement or exclusion from a candidate “slate” or pool;
- Job duties or work assignments.
The document stresses that Title VII does not provide an exception for “diversity interests” and a general business interest in DEI is insufficient to support employment decisions being made on the basis of a protected characteristic.