HR Tip: EEOC's guidance on DEI practices signals shift in enforcement policies

On March 19, The Equal Employment Opportunity Commission and DOJ released two technical assistance documents, "What You Should Know About DEI-Related Discrimination at Work" and "What To Do If You Experience Discrimination Related to DEI at Work." While these documents do not establish new legal rights or causes of action, they reflect a new interpretation of how Diversity, Equity, and Inclusion (DEI) initiatives intersect with existing anti-discrimination protections and provide a roadmap for employers to ensure compliance.

The guidance states that workplace DEI policies must comply with Title VII's core rule: employers may not base employment decisions or treatment on an individual's protected characteristics, such as race or sex. It offers examples of potentially unlawful DEI practices such as explicit quotas or "balancing" the workforce by race or gender. It cautions about excluding of individuals from training, mentoring, fellowships, or interviews and against separating employees into groups for DEI-related activities, such as trainings or affinity groups, based on protected traits.

Employers should closely evaluate their DEI practices to ensure they do not grant preferences or set quotas based on protected characteristics in recruiting, hiring, training promotions, internships, contract opportunities, etc. Educate supervisors on focusing on inclusivity and legally compliant DEI practices. Given the heightened focus and evolving regulations, it is wise to have counsel review new or existing DEI policies.