New EEOC and DOJ Guidance Hints at “Unlawful” DEI Practices

New informal guidance and an accompanying one-page flier issued by the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) provides a peek into what the Trump Administration might consider to be “unlawful” DEI practices.

The bottom line: The informal guidance is not binding and while it outlines certain practices that the agencies believe may be unlawful – such as exclusive Employee Resource Groups (ERGs) – it still does not provide a specific, comprehensive answer to the central question underlying this administration’s approach to DEI – what does it consider to be “unlawful” DEI practices?

For employees: The guidance is tailored for employees and job applicants, providing  a how-to guide for individuals who believe they may be a victim of DEI-related discrimination:

ERGs and DEI trainings in focus: While the guidance does not provide many specific examples of “unlawful” DEI practices, it highlights employee resource (and related) groups that premise exclusive membership on certain protected characteristics (race, sex, etc.) as potentially unlawful.

• The guidance also asserts that some “DEI training” may create unlawful hostile work environments, and that disciplining employees for refusing to attend such trainings may be discriminatory.

• “Balancing a workforce by race, sex, or other protected traits” is also unlawful according to the guidance, although it does not specify the methods or types of balancing that would be unlawful.

“Disparate treatment” is discrimination: The guidance emphasizes that in general, “disparate treatment” on the basis of race, sex, or another protected characteristic is discrimination. This broad view may be used to target internship or scholarship programs, mentorship programs, diverse slates, exclusive ERGs,. or any other practice, program or benefit where access may be exclusive based on a protected characteristic.

Still waiting…The guidance provides only a glimpse on the open question of how the Trump Administration may define “unlawful” DEI practices. The forthcoming report on private sector DEI practices required by the Executive Order may provide further insight. In the meantime, the administration is likely to move forward with enforcement actions. Accordingly, employers may not have a clear understanding of where the lines are drawn until they are facing a lawsuit.