03-26-2025
Following the executive orders regarding diversity, equity, and inclusion programs, the EEOC released a technical assistance document called “What You Should Know About DEI-Related Discrimination at Work.” An employer’s D.E.I. policy, program, or practice may be unlawful if it includes “taking an employment action motivated—in whole or in part—by race, sex, or another protected characteristic.” “DEI-related disparate treatment” may include disparate treatment in hiring, firing, promotion, demotion, compensation, and fringe benefits. Additionally, it may consist of access to or exclusion from training; access to mentoring, sponsorship, or workplace networking/networks; internships, including fellowships or summer associate programs; and selection for interviews, including placement or exclusion from a candidate pool.
The EEOC told employers to offer “training and mentoring” to “workers of all backgrounds” that gives them the opportunities, skills, and experience necessary to perform their jobs well and move to upper-level positions. Employees of all backgrounds should have “equal access to workplace networks.”
Employers cannot use general business interests or customer and client preferences as reasons to treat employees disparately based on race, sex, or other protected characteristics. Bona fide occupational qualifications provide lawful grounds for employment decisions in limited circumstances but do not otherwise make preference-based decisions lawful. Employee resources groups could be a problem if they are not open to everyone or limit terms and conditions of employment to only certain members with certain protected characteristics. In addition, Title VII prohibits employers from “limiting, segregating, or classifying employees or applicants based on race, sex, or other protected characteristics” that impact their employment opportunities. This prohibition includes employer-sponsored activities that make available “company time, facilities, or premises and other forms of official or unofficial encouragement or participation.”