EEOC Issues Guidance Regarding What Constitutes Illegal DEI

The EEOC has issued guidance on what constitutes illegal DEI and its application to private employers. Employees alleging DEI-based discrimination are required to file a charge of discrimination with the EEOC to prove probable cause and be awarded a Notice of Right to Sue to pursue a suit in Federal Court under Title VII. Illegal DEI practices are when an employer or other covered entity takes any employment action influenced- in whole or in part- by race, sex, or another protected characteristic. The guidance is very clear that protected characteristics cannot have any bearing on employment action; it doesn’t matter if it’s the only factor, deciding factor, or one of many equally weighed factors. Any consideration toward a protected characteristic is illegal.

Client and customer requests are not an exception unless there is a bona fide occupational qualification “reasonably necessary to the normal operation of that particular business or enterprise” in regard to religion, sex, or national origin. The limited exception of the bona fide occupational qualification is not extended to race or color.

The EEOC has stated that,

“depending on the facts, an employee may be able to plausibly allege or prove that a diversity or other DEI-related training created a hostile work environment by pleading or showing that the training was discriminatory in content, application, or context.”

It is prudent practice to seek legal counsel to avoid prosecution under this new guidance. The attorneys at The Royal Law Firm are committed to helping employers navigate EEOC complaints and investigations.

If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.