The Trump Administration remains focused on what it calls illegal diversity, equity, inclusion practices. As a result, the EEOC and federal Department of Justice this spring released two technical assistance documents. We’d written about the topsy-turvy new world of DEI in a prior blog post on DEI/DEIA. The first document from the feds identifies what DEI discrimination at the workplace might look like. The second document contains frequently asked questions (FAQs) regarding DEI-related discrimination at the workplace.
The EEOC and DOJ further explain that DEI policies may violate Title VII if they involve disparate treatment; limiting, segregating, and classifying workers; harassment or hostile work environment; or retaliation.
This has always been the case. The Trump Administration seems to be reinterpreting things to fit its narrative, however. We want you to be aware of these changes on the federal front.
Clarification of President Trump’s Anti-DEI Executive Order
These two documents are meant to clarify the President’s Executive Order (EO) and his Administration’s recent effort to outlaw DEI practices.
Notwithstanding the EO, the law – that is, statutes passed by Congress and signed by this or any other President – embraces equal and equitable treatment of employees. So these new publications confirm that DEI trainings, programs, and groups only are illegal if they violate the federal anti-discrimination statute, called Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination based on protected characteristics including race, color, religion, sex, and national origin.
Employers should not ditch their DEI efforts. So long as their policies have been vetted and are in compliance with Title VII, as they should have been before the Trump Administration began its efforts, then they should remain in place.
The Law on Discrimination
Here, we’re talking only about federal law. As our readers know, New York has its own laws against discrimination in the workplace and elsewhere.
We believe these new publications are a thinly-veiled attempt to frighten employers into complying with the Administration’s apparent views on DEI initiatives.
These efforts may be designed to encourage white, mostly male, employees to file EEOC complaints related to DEI policies and trainings. The challenge for the Trump Administration is that these administrative agency documents are just that – they’re documents. No doubt they’re official views of the current Executive agencies, but they’e not the law.
Stated differently, the EEOC and DOJ guidance documents display the agencies’ views and perspectives on diversity, equity, inclusion, and discrimination, but they don’t control how the courts act. Courts look to laws – also called statutes – such as Title VII when deciding discrimination cases.
The EEOC and DOJ guidance documents cite to an amicus brief, filed by the EEOC itself, to support the claim that DEI training may constitute protected activity. However, the court held that the plaintiff’s belief, however since it may have been, that an implicit bias training was racially discriminatory, was not objectively reasonable. As a result, the employee’s refusal to take the training simply wasn’t protected activity under Title VII.
Interestingly, the same EEOC amicus brief stresses the importance of providing fact-specific bases for employee’s belief about an alleged Title VII violation, plausible allegations, and evidence that supports the discrimination claims.
The recently-issued guidance also claims that diversity, equity, and inclusion trainings may give rise to a hostile work environment claim, but in that same amicus brief, the EEOC cited to cases where employees who have tried to claim diversity trainings created a racially hostile working environment failed to succeed in their claims.
One thing we know for sure. Title VII and the New York Human Rights Law remain on the books and enforced here in New York. As always, then, review your company’s policies to ensure compliance with these laws, and don’t abandon your company’s inclusivity efforts.
If you have questions regarding your company’s DEI practices, feel free to contact us at 716.839.9700 or info@coppolalegal.com. We’re here to help.
