Former EEOC Officials Push Back on EEOC/DOJ Guidance on DEI

Ten former EEOC officials, including former Chairs, Vice Chairs, Commissioners, General Counsels, and Legal Counsels nominated by Presidents from George W. Bush to Donald Trump, have issued a joint statement about guidance released by the EEOC/DOJ last month, arguing the new guidance “does a grave disservice to employers, their employees and America’s economy” to the extent the recommendations “chill” employer proactive efforts to provide equal opportunity for all employees and applicants.  

The joint statement is a direct response to last month’s release by the EEOC of two new technical assistance documents aimed at clarifying the administration’s positions on how Title VII applies to employer “Diversity, Equity and Inclusion” (DEI) practices. The former EEOC officials detail ways they believe employers can take proactive steps to identify and eliminate unnecessary barriers in employment.  

Highlights 

The joint statement reiterates employers’ broad interest in having a diverse and inclusive workforce, pointing to research that consistently finds it can increase revenue, enhance productivity, and lead to innovation across the board. The former EEOC officials argue that having an interest in diversity does not mean that employers will necessarily use illegal race- and/or sex-based preferences to serve that interest. This contrasts with the new EEOC/DOJ guidance which states that “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.” 

Noting that the EEOC/DOJ guidance “discourages” employers from providing “DEI-related training,” the joint statement notes the many ways training can help employers meet their legal obligation to prevent harassment and other forms of discrimination in the workplace. Countering the assertion that DEI training will likely lead to hostile work environment claims, the joint statement reminds employers that presenting subject matter that might make some employees feel uncomfortable generally does not meet the standards for such claims and details the few circumstances in which it has. This provides employers with much needed context to help employers evaluate whether their training programs are lawful under Title VII. 

The joint statement also addresses employee resource groups (ERGs) and the like. The former EEOC officials argue that current law does not prohibit organizing voluntary ERGs to address common experiences and provide a supportive environment, but caution that such groups do need to be open to all and apply the same processes and criteria to all who participate. 

Finally, the joint statement provides a suggested “positive forward-looking framework” for employers. The joint statement reminds employers that “broadening their talent acquisition strategy” is one way to “lawfully” ensure consideration of “applications from the full complement of qualified talent,” but steers clear of much discussion of the use of sex- or race-specific recruiting sources. The statement also suggests that employers “review the qualifications and selection criteria” for jobs to determine if any requirements create a barrier to equal employment opportunity. Employers who are interested in job analysis or selection criteria review can learn more about Berkshire’s approach on our People Insights page.  

Perhaps most importantly, the joint statement reiterates something employers need to understand. Although some have suggested that employers should stop analyzing their workforce data for potential discrimination altogether since President Trump’s recent executive orders, the former EEOC officials emphasize that analyses are crucial for employers to identify and correct any barriers to equal opportunity before those barriers blossom into a lawsuit.  

“Collecting and examining data in order to understand where there may be barriers to equal employment opportunity based on race, sex, or other characteristics protected by Title VII raises no legal concern.” 

The joint statement goes on to suggest appropriate safeguards for data collection, including steps that are already very familiar to federal contractors, such as collecting the data on a voluntary basis, maintaining it separately from other application materials, and not sharing individual demographic information with those involved in selection decisions.  

We highly recommend that our clients read the full joint statement along with EEOC’s new technical assistance documents, as you chart your organization’s path forward.