EEOC and DOJ release guidance on ‘unlawful’ DEI

On March 19, the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) released two technical assistance documents addressing what they characterize as “unlawful” diversity, equity, and inclusion (DEI)—a one-page summary titled “What to Do if You Experience Discrimination Related to DEI at Work” and a longer question and answer (Q&A) document titled “What You Should Know About DEI-Related Discrimination at Work.”

What the documents say

In the documents, the agencies remind employees and employers that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on protected characteristics, such as race and sex, and that any decisions motivated, in whole or in part, by a protected characteristic are unlawful. The EEOC press release reiterates that “the widespread adoption of DEI, however, does not change longstanding legal prohibitions against the use of race, sex, and other protected characteristics in employment.” The accompanying DOJ press release notes that “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.”

The EEOC’s technical assistance document also states that Title VII’s protections apply equally to all workers, not just to minority groups. Finally, these official documents provide employees who question their employers’ DEI practices with instructions on how to file charges with the EEOC.