Trump Officials Warn Employers About Illegal DEI
Ever since President Trump began issuing orders aimed at eliminating diversity, equity and inclusion (DEI) policies and practices in the first days of his Administration, employers have wondered about how this will affect them directly.
The Department of Justice (DOJ) and the Equal Employment Opportunity Commission in March issued an advisory seeking to clarify these policies for private sector organizations, although in doing so they may have only succeeded in creating more confusion, according to legal observers.
In late February, a federal district court judge had issued an order blocking enforcement of Trump’s new DEI policies that were to be applied to both the government and private sector. A federal appeals court later removed that stay pending further appeal, meaning the Trump DEI policies can continue to be put into effect by the federal government.
The one-page joint DOJ and EEOC technical assistance statement is called “What to Do If You Experience Discrimination Related to DEI at Work.” The commission also issued on its own longer document seeking to clarify its policy in regard to what is considered illegal DEI titled “What You Should Know About DEI-Related Discrimination at Work.”
For many employers the issue boils down to what needs to be done to avoid potential liability arising from attracting enforcement actions and litigation. Some employers started jettisoning DEI policies even before Trump took office. Others have committed to continuing their DEI programs, like Costco.
As attorneys Jennifer Prozinski and Cassandra Brumback of the law firm of Venable LLP put it, “recommended action regarding DEI is largely dependent on the employer's business, culture and risk tolerance.”
Regardless of whether top management favors or disapproves of DEI, they say companies should identify DEI programs and messaging that may violate the President’s Executive Order. “Employers should flag potential offending training, programs, Web pages, announcements and contractual language,” they advise.
Attorney Layla Khalid, of the law firm of Squire Patton Boggs, points out, “Although it is clear that the Trump Administration intends to pursue aggressive enforcement against public and private employers that it believes engage in illegal DEI, employers do not need to respond by completely dismantling their DEI programming.”
Under the Trump Administration interpretation, illegal DEI actions are those that create violations of Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex, or national origin.
The President was quite vocal in his opposition to what he considered DEI extremism during the presidential campaign, and the new Administration began taking actions to root out DEI programs in the military and federal government agencies from the first day he was in office.
Defining Illegal DEI Is Tricky
The Administration holds that illegal DEI exists when employers act to favor one protected group over another regarding the terms, conditions or privileges of employment. Examples given in the advice documents include such things as access to leadership, mentoring and development selections.
For example, it would be viewed as a violation of law to limit, segregate or classify employees based on protected characteristics, such as by forming employee resource groups (ERGs) that limit membership based on protected characteristics. Commonly used in DEI programs, ERGs are commonly defined as employee-led, voluntary communities within an organization that connect employees with shared characteristics or interests.
Even before the Trump Administration, such practices as organizing internships or training programs solely for women or particular racial and ethnic minorities drew litigation and public criticism for being viewed as discriminatory. However, Khalid says that “ERGs do not appear to violate Title VII so long as membership and opportunities are open to all employees.”
DOJ and EEOC say in their one-page advisory, “Different treatment based on race, sex, or another protected characteristic can be unlawful discrimination, no matter which employees are harmed. Title VII’s protections apply equally to all racial, ethnic and national origin groups, as well as both sexes.”
They further explain that DEI policies, programs or practices may be considered unlawful if the organization engages in an employment action “motivated—in whole or in part—by an employee’s race, sex or another protected characteristic.”
In addition to unlawfully using quotas or otherwise “balancing” a workforce by race, sex or other protected traits, DOJ and EEOC say that DEI-related discrimination in the workplace could also arise in regard to hiring, firing, promotion, demotion, compensation, fringe benefits, selection for interviews (including placement on candidate slates), and exclusion from training, mentoring or sponsorship programs, and exclusion from fellowships.
While limiting the membership in ERGs to certain protected groups is being viewed as illegal by the EEOC, it says the same is true when it comes to separating employees into groups based on race, sex or another protected characteristic when administering DEI or other training activities, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources.
EEOC also stressed that employers should be wary of employees who may file complaints regarding retaliation arising from adverse actions taken after they object to certain DEI requirements. “Reasonable opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII,” EEOC explains in its longer advisory document, “What You Should Know About DEI-Related Discrimination at Work.”
In the five years since DEI became widespread in corporate America following the racial turmoil of 2020, complaints have persisted stemming from what some employees viewed as discriminatory actions regarding training and hiring that were taken by their employers, and in many cases these complaints attracted public attention.
The EEOC’s explanatory document also goes into more extensive detail about what constitutes DEI discrimination and who can make such claims with the commission. These are said to include “potential and actual” job applicants, training program participants and interns. The agency also outlines what steps potential complainants can take to seek redress.
Keep in mind that EEOC’s jurisdiction extends only to private sector employers with 15 or more employees. State and local government employees come under the jurisdiction of the Justice Department.
“Even with this guidance, there are still many gray areas that remain, and it is unclear if courts will interpret Title VII consistent with these EEOC guidelines,” Khalid warns. She and other attorneys urge employers to work with legal counsel to carefully review their DEI, training and mentoring activities and keep up with court and administration policies and activities.
