Both public and private employers should take note of recent federal guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC) and U.S. Department of Justice (DOJ).

On March 19, the EEOC and DOJ released two guidance documents addressing unlawful discrimination and diversity, equity, and inclusion (DEI) in the workplace. More specifically, the EEOC and DOJ released a one-page guidance document titled “What To Do If You Experience Discrimination Related to DEI at Work.” Similarly, the EEOC released a separate guidance document in question-and-answer format titled “What You Should Know About DEI-Related Discrimination at Work.”

The guidance documents largely reiterate what has always been true under Title VII of the Civil Rights Act of 1964 (Title VII) – employers are prohibited from making employment decisions based upon an employee’s or applicant’s protected characteristics such as race, color, religion, sex, or national origin. This includes, but is not limited to, exhibiting a preference for employees or applicants of a particular protected class. In reviewing this guidance, below are some key takeaways for employers to consider:

• DEI initiatives, policies, programs or practices can be unlawful if an employer takes an employment action motivated – in whole or in part – by an employee’s or applicant’s race, color, religion, sex or national origin. Title VII forbids preferences based on any of these characteristics.
• Title VII applies equally to people of all races, colors, religions, sexes, and national origins. Title VII’s protections do not only apply to individuals who are part of a minority or historically under-represented group.
• There is no “business necessity” or “interest in diversity” exception under Title VII, and these cannot be used as a defense against a claim of discrimination in violation of Title VII. Similarly, client or customer preference is not a defense to discrimination.
• Title VII applies to employers of 15 or more employees. However, employers must keep in mind that analogous state-specific civil rights and anti-discrimination laws may have different thresholds and apply to employers with fewer employees.
• Title VII protects employees, potential and actual applicants, interns, and training program participants.

For more information on these issues and the latest federal guidance, please contact a member of Taft’s Employment and Labor Relations practice group.