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Companies are already facing major pressure to scrap or change their DEI programs. Now further guidance from the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) is encouraging employees to join in on the fight by investigating DEI policies at their own companies.
On Wednesday, the agencies released two documents entitled “What You Should Know About DEI-Related Discrimination at Work” and “What To Do If You Experience Discrimination Related to DEI at Work.” These new resources describe what counts as “DEI-related discrimination,” and how to report it to the EEOC. Perhaps most important though, they encourage the public to speak up if they can provide “a fact-specific basis” around why they believe certain policies or practices related to DEI violate Title VII of the Civil Rights Act.
“These technical assistance documents will help employees know their rights and help employers take action to avoid unlawful DEI-related discrimination,” EEOC Acting Chair Andrea Lucas wrote in a statement about the new guidance. The move follows similar recent anti-DEI efforts from Lucas. On Monday, she sent letters to 20 law firms requesting information about their diversity, equity, and inclusion-related employment practices.
What do the new DOJ and EEOC employee guidelines mean for workplaces around the U.S.? They add to the heightened culture of fear for employers who are already nervous about trying to preserve their DEI policies in a tough political climate, says David Glasgow, executive director of the Meltzer Center for Diversity, Inclusion, and Belonging at New York University
“Employers are already very nervous, and feeling threatened with civil compliance investigations,” he says. “This latest guidance is pouring fuel on an already raging anti-DEI fire.”
But while these documents seem daunting at first glance, he notes that they don’t change any current laws. And he says that the bar for claiming DEI-related discrimination is very high.
“I think guidance like this could make people unnecessarily worried about, ‘Oh no, what if our DEI trainings are creating a hostile work environment?’ When 99.9% of trainings don’t actually do that,” he says.
In short, companies should make sure that their programs are bulletproof, but avoid scrapping them altogether, says Nonnie L. Shivers, attorney and office managing shareholder at legal firm Ogletree Deakins. She says many court cases have supported an employer’s right to train their employees, and create an equal opportunity workplace.
“Employers should continue to conduct privileged assessments of their DEI programs and evaluate risk, leaning into existing civil rights law for what is legal as the law has not changed,” she says.
Brit Morse
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