On March 19, the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) issued guidance addressing discriminatory Diversity, Equity and Inclusion (DEI) programs in the workplace. The guidance aims to provide a preliminary answer to the question, “What is considered unlawful DEI?”

The joint guidance released by these two civil rights agencies reemphasized that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination and differential treatment based on protected characteristics such as race, ethnicity, national origin, and sex. Title VII’s protections cover employees, potential and actual applicants, interns, and training program participants.

According to the joint guidance, DEI policies, programs, or practices could be deemed unlawful under Title VII if an employer or covered entity takes employment action that is motivated, in whole or in part, by an employee’s protected characteristic.

The guidance provides examples of what is likely to be considered unlawful DEI. Examples include:

• Using quotas or otherwise balancing a workforce using protected characteristics.
• Hiring or firing based on protected characteristics.
• Promoting, demoting, conditioning or changes in compensation and/or fringe benefits based on protected characteristics.
• Limiting, segregating, and/or classifying employees based on protected characteristics.
• Workplace harassment motivated by protected characteristics.
• Retaliation by an employer or covered entity because an individual engaged in an activity protected under Title VII.

Federal contractors are expected to review and revise their practices and policies before the 90-day safe harbor period ends on April 21, to ensure alignment with President Trump’s directives. The joint guidance, along with a separate FAQ-style guidance which was released by the EEOC regarding Title VII and DEI-related discrimination in the workplace, provides some clarity on the enforcement priorities of the current administration.

Taft’s Government Contracts and Employment Law groups are monitoring the impacts of EO 11246 and will continue to provide updates as more guidance is released.