New England Biz Law Update
On March 19, the EEOC and the Department of Justice released two technical assistance documents offering guidance for employers navigating DEI compliance. Here are the key takeaways:
Title VII applies to all
The EEOC reaffirmed that Title VII bars employment discrimination based on race, color, national origin, sex, and religion — protecting all employees, regardless of background.
“Reverse” discrimination does not exist
Title VII protections extend equally to majority and minority groups. The EEOC doesn’t impose a higher burden of proof for claims brought by majority-group employees.
There is no diversity exception
The guidance makes clear that DEI goals don’t justify race-based employment decisions. Title VII does not allow a “business necessity” or “diversity interest” defense for such actions.
Who’s covered
Title VII protections apply not only to employees and applicants, but also to interns and participants in training programs.
Possible unlawful DEI-related discrimination
These include: 1, quotas; 2, limiting membership in workplace groups, such as affinity groups; or 3, retaliating against an employee who reasonably opposed DEI training. This may constitute protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII.
While I could go over all these points in detail, I think the story is much simpler: “To stay compliant and minimize legal risk, conduct an attorney-client privileged review of your DEI programs and training materials with counsel. Ensure that hires, promotions, and compensation decisions are transparent and well-documented. Provide training to HR and hiring managers on legally sound practices aligned with your business goals, and frame diversity initiatives around workplace culture, professional growth, and inclusive, merit-based access to opportunities as part of a sustainable strategy.”
Stephen Scott is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law.
