By: Joanna Colosimo
Over several decades, DCI has dedicated substantial efforts to evaluating equal employment opportunity (EEO) compliance programs and anti-discrimination initiatives. Typically managed within an organization's Human Resources and Legal departments, these initiatives strive to foster a respectful workplace and ensure equitable opportunities throughout the employee lifecycle.
This commitment encompasses all individuals regardless of race, ethnicity, skin color, sex, sexual orientation, religion, disability status, veteran status, or any other characteristic unrelated to their skillset, performance, or capabilities.
In recent years, diversity, equity, and inclusion (DEI) programs have emerged and sometimes overlapped with traditional EEO initiatives. Organizations started to streamline these efforts to ensure they complement each other, fostering a cohesive approach to creating an inclusive workplace. This synergy between EEO and DEI programs highlighted evolving workplace practices to address both legal compliance and broader social inclusion goals. However, recent executive actions have led many organizations to reassess their DEI programs, potentially affecting established EEO programs that comply with Title VII of the Civil Rights Act.
Changes Under the Trump Administration
As highlighted by a series of Presidential executive orders this year, the current administration is focusing on what they refer to as “illegal” DEI in the workplace. Examples include Executive Order 14151 (Ending Radical and Wasteful Government DEI Programs and Preferencing) and Executive Order 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity).
The federal government's implementation of DEI and EEO in its own organizational redesign efforts provides insight into the administration's perspective on these issues. In February, the Office of Personnel Management (OPM), the federal government’s HR agency, took action to implement some of the executive orders by releasing guidance related to ending DEI(A) offices, programs and initiatives. In this guidance, Charles Ezell, the Acting OPM Director indicated that ending unlawful DEIA programmatic efforts “…does not apply to, and agencies should retain personnel, offices and procedures required by statue or regulation to counsel employees allegedly subjected to discrimination, receive discrimination complaints, collect demographic data, and process accommodation requests.”
He goes on to state, “the Biden-Harris Administration conflated longstanding, legally required obligations related to disability accessibility and accommodation with DEI initiatives…agencies should not terminate or prohibit accessibility or disability-related accommodations…”
Understanding the Difference Between EEO and DEI
To clarify the distinction between EEO principles and DEI, the Equal Employment Opportunity Commission (EEOC) recently noted that "DEI is a broad term not defined in Title VII of the Civil Rights Act of 1964." The press release goes on to say, "In the past five years, DEI policies, programs, and practices have become increasingly prevalent in many of our nation’s largest and most prominent businesses, universities, and cultural institutions. The widespread adoption of DEI, however, does not change longstanding legal prohibitions against the use of race, sex, and other protected characteristics in employment.” {emphasis added}.
The press release states that civil rights rules apply to employment policies, including those labeled as 'DEI'. However, it also emphasizes that some efforts under DEI programs may have violated Title VII of the Civil Rights Act and is referring specifically to these unlawful programs as “illegal DEI” efforts or practices. As noted in a prior blog, EEOC and the Department of Justice’s (DOJ) joint technical guidance stated that illegal DEI includes the use of quotas, preferences based on protected characteristics, or limiting opportunities based on race/ethnicity, sex, or some other protected characteristic.
Additionally, in an April 11 press release, EEOC outlined a settlement it reached with four “Biglaw” firms that include multi-year agreements to “no longer categorize any lawful employment or practices (including those addressing equal employment opportunity, accessibility, or reasonable accommodation….as DEI.”
These actions demonstrate that Title VII and EEO-related laws are distinct from the administration's interpretation of DEI. Activities such as implementing data collection efforts, assessing compliance with Title VII principles in employment practices, and providing reasonable accommodations are examples of EEO-related activities that differ from DEI. For example, in a recent LinkedIn post from EEOC Chair Andrea Lucas, she indicated, “...intentional discrimination claims proven via the “pattern or practice” model of proof first set out by the Supreme Court in Teamsters v. United States, which may entail the use of statistical evidence, along with other evidence, to prove disparate treatment....the Commission will continue to relentlessly combat unlawful patterns or practices of intentional discrimination in violation of Title VII...”
The Importance of Separating DEI from EEO
Given recent executive orders targeting DEI initiatives in the federal government, organizations should consider reassessing and restructuring their programmatic efforts.
The principles of EEO align with Title VII of the Civil Rights Act and recent EEOC guidance documents which interpret the prohibition of employment discrimination based on protected characteristics such as race and sex. Although many DEI programmatic efforts are also rooted in these foundational Title VII principles, this moment in history offers an opportunity for organizations to evaluate which programmatic efforts best align with the equal employment opportunity principles versus “diversity, equity or inclusion” initiatives. Separating compliance and anti-discrimination efforts from more holistic inclusion efforts may be a prudent course of action for the next few years.
The next blog in this series will provide practical considerations for organizations that are interested in decoupling DEI programs for EEO programs.
