The U.S. Equal Employment Opportunity Commission (EEOC) recently published guidance to clarify what it regards as “discriminatory” DEI programs. The EEOC’s guide for employees is titled “What To Do If You Experience Discrimination Related to DEI at Work.” A FAQ-style guide is called “What You Should Know About DEI-Related Discrimination at Work.” While the EEOC guidance is geared toward providing information to employees who may want to report workplace DEI programs, it also provides insights for employers about what they might expect from the EEOC following recent executive orders.

The agency defined what it means by an “unlawful DEI program”: “DEI 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 race, sex, or another protected characteristic.” Title VII has always prohibited taking employment actions motivated by an employee’s protected characteristic, but the EEOC’s decision to prioritize enforcement against DEI programs and apply so-called “reverse discrimination” is new.

In addition to providing a definition for “unlawful DEI program,” the guidance also lists aspects of DEI programs the EEOC views as discriminatory:

• Unlawful quotas or otherwise “balancing” a workforce by race, sex, or other protected traits
• Exclusion from training, fellowships, mentorship programs, the selection for interviews or placement on candidate slates, and internships on the basis of a protected class
• Limiting membership in workplace groups, such as Employee Resource Groups, or other affinity groups, to certain protected groups
• Separating employees into groups based on race, sex, or another protected characteristic, when administering DEI or other trainings, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources
• Considering race or another protected characteristic to satisfy a customer’s or client’s request for a diverse team or other preferences

The guidance also addressed how the EEOC intends to approach Harassment and Retaliation claims related to DEI programs. Depending on the facts, the EEOC contends that DEI training may give rise to a colorable hostile work environment claim. The EEOC also indicated it believes that reasonable opposition to DEI training may constitute a protected activity if the employee provides a fact-specific basis for a belief that the training violates Title VII. An employer may be liable for a retaliation claim if it takes an adverse employment action against an employee based on that individual’s protected activity.

To be sure, the EEOC guidance does not change the law. Title VII has always prohibited discrimination based on, or motivated by, an employee’s protected characteristics. The guidance does indicate the EEOC is prioritizing enforcement against employers with DEI programs, however, as well as pursuing claims of so-called “reverse discrimination.” As indicated by the guidance, the EEOC does not regard every DEI program as unlawful. Thus, the guidance does not necessarily mean employers must cease all efforts to foster a diverse or inclusive work environment. Nevertheless, employers who are concerned about whether their DEI practices comply with the law should reach out to an employment attorney for advice.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice with regard to your situation, you should contact an attorney.