On the heels of President Trumps Executive Orders signaling the administration’s intent to eliminate diversity, equity and inclusion (DEI) programs in the federal and private sector, the EEOC has issued two technical bulletins intended to educate the public as to the discriminatory nature of DEI in the workplace, one directed at employees and a second one consisting of general questions and answers titled What You Should Know About DEI-Related Discrimination At Work. Specifically, the EEOC is acting in response to the Executive Order signed by President Trump on January 21, 2025, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” which directs the Attorney General to consult with the directors of various federal agencies, to identify private sector companies with “egregious and discriminatory” DEI programs” and “take all appropriate action with respect to the operations of their agencies to advance in the private sector the policy of individual initiative, excellence, and hard work” thus portending potential investigations of private sector businesses.
In this technical assistance bulletin, the EEOC points out that DEI is not in and of itself a term used, much less defined, in Title VII of the Civil Rights Act of 1964 which had spurred prohibitions against discrimination in the workplace. In the EEOC’s opinion, it has resulted in too many employers having conflated anti-discrimination with an intent to right the wrongs of past discrimination through implementing certain types of preferential treatment, generally based on race and gender, that are motivated by good intentions. However, as the EEOC posits different treatment based on race, gender or any other protected characteristic is still discrimination even if it benefits that protected group.
EEOC increases the scope of its scrutiny to any benefit that is intended to benefit a diverse population.
The EEOC technical assistance bulletin states that any “employer initiative, policy, or practice” may be unlawful if it involves any employment action motivated – in whole or in part- by race, sex, or other protected characteristic. The EEOC appears to be targeting any program or practice that limits, segregates or classifies employees based on race, sex or other protected characteristics “in a way that affects their status or deprives them of employment opportunities” especially those that deny an employee the opportunity to participate in such programs because of their race, sex or other protected characteristic. The EEOC takes a wide swath – employer sponsorship can take the form of official or unofficial encouragement, offering such activities on workplace time, and the use of company facilities or premises. As noted by the EEOC, trainings, workplace programming or other benefits that are based on segregation of employees by race, gender or other protected characteristics are unlawful even if the segregated groups receive the same resources and programming content.
Specifically, the EEOC lists the following as worthy of scrutiny for unlawful discrimination:
- Access to or exclusion from training, including leadership development programs;
- Access to or exclusion from mentoring and sponsorship programs;
- Access to important workplace networks and introductions to significant network opportunities;
- Programs that provide employees the opportunity, skill and information to advance to upper level positions; and,
- Employer-sponsored employee activities such as employee clubs or groups including affinity groups.
Although the prohibition against segregating employees is not new as it has always been unlawful to segregate employees by race or gender as to the use of certain facilities such as restrooms or job positions, the EEOC has broadened its reach in its efforts to curb, if not eliminate, all DEI programs in conformance with the Executive Order.
It is unclear at this time how the EEOC’s stance will impact programs regarding affinity groups or designed to advance opportunities for women and minorities, especially with regard to networking and mentorship programs.
EEOC emphasizes that the scope of its scrutiny includes non-employees.
The EEOC’s position is applicable not just to employees but also to applicants, training or apprenticeship programs, and internships therefore ensnaring not just employers, but also employment agencies, businesses operating training programs, and labor organizations such as unions. Employers must especially be cognizant that they can be liable for their agent’s discriminatory conduct such as recruiters and other third party service providers which may offer preferential treatment or opportunities to minority candidates.
EEOC reiterates recent court rulings easing the burden of proof for discrimination claimants.
Following up on the U.S. Supreme Court decision in Muldrow v. City of St. Louis the EEOC also reiterates the Court’s decision holding that a person claiming discrimination under Title VII now need only show “some injury” or “some harm” and not “significant” harm, which had often been a standard used in prior discrimination claims. Also, the EEOC advances its own opinion on how the case of Ames v. Ohio Dept. of Youth Services, currently before the U.S. Supreme Court, should be resolved. In Ames, the Sixth Circuit held that an employee claiming reverse discrimination must demonstrate a higher showing of evidence than an employee claiming discrimination based on a protected characteristic. The EEOC advises the opposite – that there is no required higher showing of proof required. In the EEOC’s present view, there is no such thing as “reverse discrimination – there is only discrimination.”
These issues thorny for employers who have spent years developing programs to increase diversity in their workplace. Our attorneys in our Labor and Employment Practice Group are available to help employers navigate this new development. To discuss further, please contact our office at 216.696.8700.
