As you know from previous updates, a Maryland Federal Court enjoined President Trump’s Executive Order attempting to eliminate DEI initiatives. The Fourth Circuit Court of Appeals reversed the injunction for now while the issue continues to play out through the court system. This means that the government can continue to terminate all equity related grants or contracts, require federal contractors to certify that they do not operate programs promoting DEI or otherwise violate any federal anti-discrimination laws, and permit enforcement actions against private sector employees who discriminate in the interest of DEI initiatives.
Since the EO was issued, Contractors have awaited the administration’s answers regarding the scope and meaning of “illegal DEI.” Initial guidance has been provided by the EEOC and the DOJ in a one-page document, “What To Do If You Experience Discrimination Related to DEI at Work” and a question-and-answer technical assistance document, “What You Should Know About DEI-Related Discrimination at Work.” Neither of these documents appear to materially alter the current discrimination and harassment compliance landscape or resolve the myriad of issues and questions surrounding implementation of private sector DEI programs.
The EEOC provides information for those who may have been the victims of discriminatory DEI practices consistent with Title VII and directing them through the EEOC process. Consistent with existing Title VII prohibitions, it notes that this discrimination may result from hostile work environment claims related to DEI training if the training is “so frequent or severe that a reasonable person would consider it intimidating, hostile, or abusive.” Similarly, without any examples or insight, it recognizes that retaliation claims may also be possible for those seeking to prevent such illegal policies from being enforced. The harm which must be demonstrated is also consistent with existing Title VII tenets.
The EEOC did appropriately caution that employers cannot justify employment actions based on an interest in “diversity,” however, continue to leave room for those cases where an employer can demonstrate a “bona fide occupational qualification” as an affirmative defense in very limited circumstances.
It remains important for employers to continue to review their current DEI initiatives and programs, especially for federal contractors and grant recipients. If you need guidance feel free to reach out to RKW’s employment attorneys for assistance.
