In cases alleging that diversity trainings created hostile work environments, courts have ruled in favor of plaintiffs who present evidence of how the training was discriminatory (for example, in the training’s design, content, or execution). Image: Dilok Klaisataporn/Shutterstock.com
By: FEDweek StaffFollowing are the key points of recent policy statement from the EEOC, applying to both the federal sector and private sector companies affected by the Civil Rights Act and other laws under its jurisdiction, on how it considers those laws as applying to “DEI-related discrimination” in the workplace.
Diversity, Equity and Inclusion (DEI) is a broad term that is not defined in Title VII of the Civil Rights Act of 1964 (Title VII). Title VII prohibits employment discrimination based on protected characteristics such as race and sex. Under Title VII, DEI initiatives, 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 or applicant’s race, sex, or another protected characteristic.
What if I am a federal employee and have experienced discrimination related to DEI at work? What is the complaint process?
If you are a federal employee and believe your federal agency employer discriminated against you based on a protected characteristic as a result of, or related to, DEI, you first must contact an EEO counselor at your federal agency employer. Check out EEOC’s overview of the federal sector EEO complaint process for more details and steps.
Do Title VII’s protections only apply to individuals who are part of a “minority group,” (such as racial or ethnic minorities, workers with non-American national origins, “diverse” employees, or “historically under-represented groups”), women, or some other subset of individuals?
No. Title VII’s protections apply equally to all workers. Different treatment based on race, sex, or another protected characteristic can be unlawful discrimination, no matter which employees or applicants are harmed.] This has been the long-standing position of the EEOC and the Supreme Court.
The EEOC does not require a higher showing of proof for so-called “reverse” discrimination claims. The EEOC’s position is that there is no such thing as “reverse” discrimination; there is only discrimination. The EEOC applies the same standard of proof to all race discrimination claims, regardless of the victim’s race.
Are only employees protected from DEI-related discrimination at work?
No. Title VII protects employees, applicants, and training or apprenticeship program participants. Title VII also may apply to interns. Depending on the facts, interns may be covered as employees, as applicants, or as training program participants.
A charge of discrimination may be filed with the EEOC by any person claiming to be aggrieved. Additionally, a charge can be brought on behalf of an aggrieved person by a third-party, such as an organization. Finally, a Commissioner of the EEOC may bring a charge.
Are only employers “covered entities” under Title VII, that is, entities which must comply with Title VII’s prohibition on discrimination?
No. Title VII applies to employers with 15 or more employees; employment agencies (including staffing agencies); entities which operate training programs (including on-the-job training programs); and labor organizations (like unions). Employers can be liable for the actions of their agents (including recruiters and staffing agencies).
When is a DEI initiative, policy, program, or practice unlawful under Title VII?
Under Title VII, an employer initiative, policy, program, or practice may be unlawful if it involves an employer or other covered entity taking an employment action motivated—in whole or in part—by race, sex, or another protected characteristic.
Among other things, Title VII bars discrimination (“disparate treatment”) against applicants or employees in hiring, firing, compensation, or any term, condition, or privilege of employment. The prohibition against discrimination applies to a wide variety of aspects of employment. In order to allege a colorable claim of discrimination, workers only need to show “some injury” or “some harm” affecting their “terms, conditions, or privileges” of employment. The prohibition against disparate treatment, including DEI-related disparate treatment, includes disparate treatment in:
• Hiring;
• Firing;
• Promotion;
• Demotion;
• Compensation;
• Fringe benefits;
• Access to or exclusion from training (including training characterized as leadership development programs);
• Access to mentoring, sponsorship, or workplace networking / networks;
• Internships (including internships labeled as “fellowships” or “summer associate” programs);
• Selection for interviews, including placement or exclusion from a candidate “slate” or pool;
• Job duties or work assignments.
Title VII also prohibits employers from limiting, segregating, or classifying employees or applicants based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities. This prohibition applies to employee activities which are employer-sponsored (including by making available company time, facilities, or premises, and other forms of official or unofficial encouragement or participation), such as employee clubs or groups. In the context of DEI programs, unlawful segregation can include limiting membership in workplace groups, such as Employee Resource Groups (ERG), Business Resource Groups (BRGs), or other employee affinity groups, to certain protected groups.
Unlawful limiting, segregating, or classifying workers related to DEI can arise when employers separate workers into groups based on race, sex, or another protected characteristic when administering DEI or any trainings, workplace programming, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources.
Employers instead should provide “training and mentoring that provides workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascend to upper-level jobs. Employers also should ensure that “employees of all backgrounds . . . have equal access to workplace networks.”
Can an employer excuse its DEI-related considerations of race, sex, or another protected characteristic, provided that the protected characteristic wasn’t the sole or deciding factor for the employer’s decision or employment action?
No. For there to be unlawful discrimination, race or sex (or any other protected characteristic under Title VII) does not have to be the exclusive (sole) reason for an employer’s employment action or the “but-for” (deciding) factor for the action. An employment action still is unlawful even if race, sex, or another Title VII protected characteristic was just one factor among other factors contributing to the employer’s decision or action.
Can an employer justify taking an employment action based on race, sex, or another protected characteristic because the employer has a business necessity or interest in “diversity,” including preferences or requests by the employer’s clients or customers?
No. Employers violate Title VII if they take an employment action motivated—in whole or in part—by race, sex, or another protected characteristic. Title VII explicitly provides that a “demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination.”
In particular, client or customer preference is not a defense to race or color discrimination. Basing employment decisions on the racial preferences of clients, customers, or coworkers constitutes intentional race discrimination. Employment decisions based on the discriminatory preferences of clients, customers, or coworkers are just as unlawful as decisions based on an employer’s own discriminatory preferences.
Title VII allows employers to raise a bona fide occupational qualification (BFOQ) as an affirmative defense in very limited circumstances to excuse hiring or classifying any individual based on religion, sex, or national origin. The exemption applies where religion, sex, or national origin is a bona fide occupational qualification “reasonably necessary to the normal operation of that particular business or enterprise.”
However, this very limited carve-out for BFOQ excludes race and color.
Title VII does not provide any “diversity interest” exception to these rules. Nor has the Supreme Court ever adopted such an exception. No general business interests in diversity and equity (including perceived operational benefits or customer/client preference) have ever been found by the Supreme Court or the EEOC to be sufficient to allow race-motivated employment actions.
Can an employer’s DEI training create a hostile work environment?
Title VII prohibits workplace harassment, which may occur when an employee is subjected to unwelcome remarks or conduct based on race, sex, or other protected characteristics. Harassment is illegal when it results in an adverse change to a term, condition or privilege of employment, or it is so frequent or severe that a reasonable person would consider it intimidating, hostile, or abusive.
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. In cases alleging that diversity trainings created hostile work environments, courts have ruled in favor of plaintiffs who present evidence of how the training was discriminatory (for example, in the training’s design, content, or execution) or, at the motion-to-dismiss stage, who make plausible allegations that explain how the training was discriminatory.
Does Title VII protect employees who oppose unlawful policies or practices, including certain DEI practices or trainings?
Title VII prohibits employers and other “covered entities” from retaliating because an individual has engaged in protected activity under the statute. Generally, protected activity consists of either participating in an EEO process (such as an employer or EEOC investigations or filing an EEOC charge) or opposing conduct made unlawful by Title VII. Depending on the facts, protected opposition could include opposing unlawful employment discrimination related to an employer policy or practice labeled as “DEI.”.
As previously noted by the Commission, courts have held that 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.
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