Affinity Groups Potentially Unlawful, According to Recent EEOC and DOJ Guidance

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on protected characteristics, including race and sex.  However, Title VII does not define Diversity, Equity and Inclusion (“DEI”) in the context of DEI-related initiatives, policies, programs and practices in the workplace.  Nevertheless, in recent years, many employers, universities and other institutions throughout the country have adopted DEI measures relating to racial minorities and female and religious employees.

Recently, the United States Equal Employment Opportunity Commission (“EEOC”) and Department of Justice (“DOJ”) issued joint technical assistance guidance addressing an employee’s recourse against discrimination related to DEI policies, programs and practices.  The EEOC also released a frequently asked questions (“FAQ”) technical assistance document clarifying certain aspects of Title VII’s scope.  These releases are emblematic of President Donald Trump’s endeavor to crack down on and end unlawful DEI initiatives.

The guidance indicated that using quotas or attempting to “balance” a workforce by protected traits such as race and sex would be unlawful, emphasizing Title VII’s prohibition against “limiting, segregating, or classifying employees” based on protected characteristics in a way that “affects their status or deprives them of employment opportunities.”  The guidance noted that, as a result, an employer’s limiting “to certain protected groups” membership in workplace groups such as Employee Resource Groups, or other employee affinity groups, would be prohibited.  Likewise, disparate treatment, including the exclusion of certain protected groups from mentoring or sponsorship programs, training or fellowships and hiring and promotion would be unlawful.

The EEOC’s FAQ underlined its position that Title VII’s protections apply to all workers, regardless of whether they belong to a minority group, are women or are members of any other protected subset of individuals.  The EEOC’s FAQ also expressly stated its current position that there is no such thing as “reverse” discrimination and “there is only discrimination.”  Further, the EEOC suggested that a business necessity or interest, to include clients’ or customers’ preferences, in “diversity” are not viable justifications for intentional discrimination.

Andrea Lucas, Acting Chair of the EEOC, commented on the current state of Title VII as enforced by the EEOC and DOJ.  Lucas remarked, “Far too many employers defend certain types of race or sex preferences as good, provided they are motivated by business interests in ‘[DEI].’ But no matter an employer’s motive, there is no ‘good,’ or even acceptable, race or sex discrimination.”  Lucas then invoked the words of Justice Clarence Thomas’s concurrence in the Supreme Court’s 2023 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College decision, in emphasizing that “two discriminatory wrongs cannot make a right.”  Lucas further opined on “some very popular types of DEI programs,” for which she stated the current interpretation of Title VII and DEI initiatives poses “some serious implications.”

The EEOC and DOJ’s guidance demonstrates a significant turn in the tides for DEI measures in the workplace nationwide.  Employers can expect the EEOC and DOJ to ramp up enforcement efforts aimed at eliminating DEI initiatives and similar programs that utilize race-, ethnicity- or sex-based criteria, as well as affinity groups that exclude individuals outside their intended audience or provide benefits, training or mentorship only to those within them.  Employers should evaluate existing programs and policies geared toward groups generally considered historically marginalized to ensure they align with the EEOC and DOJ’s current interpretation of Title VII and do not result in an adverse employment action to individuals not considered part of these groups.

If you are an employer maintaining or considering implementing an Employee Resource Group or other employee affinity group, and have questions about how to remain complaint with applicable EEOC and Department of Justice guidance and federal discrimination laws, please reach out to your Dinsmore labor and employment attorney.