New EEOC Guidance on Employer DEI Initiatives: Prohibited Conduct, Limited Defenses, Policy Review and Development

The EEOC and DOJ recently issued two technical assistance documents (the guidance) related to the new administration's stance on DEI initiatives and potential Title VII violations—"What to Do If You Experience Discrimination Related to DEI at Work" and "What You Should Know About DEI-Related Discrimination at Work."

The guidance provides additional insight into what the agencies now consider to be "illegal DEI" initiatives under Title VII including making employment decisions such as hiring and firing, promotions, and access to opportunities and benefits based on protected characteristics, regardless of any positive intentions. The guidance also states that any practices that segment employees based on protected characteristics including race or sex, such as limiting membership in employee resource groups or affinity groups to certain protected groups also violates Title VII.

The guidance limits defenses that may be used by employers. For example, it provides that an employment decision may be found to be discriminatory even if DEI-related considerations are only a contributing factor in the decision. And it does not allow for a "business necessity" exception.

Given the change in agency focus and possibility of enforcement action, counsel should understand the new guidance and how to help their employer clients review and amend any current policies, including DEI measures, to mitigate the risk of noncompliance.

Listen as our expert panel provides an in-depth look at the EEOC's recent guidance on employer DEI initiatives and Title VII compliance. The panel will also offer best practices for assisting clients with policy review and development to limit risk of enforcement action.

I. Introduction

A. Brief history of DEI

B. Background on current administration's DEI stance

II. EEOC guidance

A. Purpose

B. Title VII 

C. Conduct that may constitute "illegal DEI" practices

D. No "business necessity" exception or "contributing factor" defense

E. Hostile work environment claims

F. Retaliation and "protected activity"

G. Enforcement

III. Employer impact

A. Policy evaluation and development

B. Training

IV. Practitioner takeaways

The panel will review these and other important considerations:

• What employer activities are now considered discriminatory and in violation of Title VII as described in the guidance?
• How does this differ from the agencies' prior stance?
• Is it possible for employers to have any DEI initiatives in place?
• What are best practices for reviewing and developing policies, including current DEI initiatives, to mitigate the risk of enforcement action?