EEOC Chair Andrea Lucas has sent a letter to all Fortune 500 companies reminding them that Title VII’s prohibition on race- and sex-based employment decisions fully applies to DEI initiatives.
The February 26 letter emphasizes that employers must base employees’ hiring, promotion, training, and access to opportunities on job-related, merit-based criteria rather than protected characteristics, regardless of an initiative’s purpose. The EEOC stated that it will use compliance assistance as well as all its enforcement tools — including investigations and litigation — to address practices it considers discriminatory.
Lucas’s letter states that it was distributed “broadly to hundreds of the country’s largest employers” and is not intended to suggest that any recipient acted illegally.
In view of the EEOC’s more assertive enforcement posture toward DEI-programs that could be seen as providing preferences, exclusions, or differential treatment based on protected characteristics, programs that weren’t considered particularly risky a few years ago could now attract attention. Employers should design them carefully and implement them in a race- and sex-neutral manner.
The DEI Risk Assessment Package offered by the Center for Workplace Compliance (CWC), our affiliated nonprofit membership association, may help employers as they conduct their reviews. CWC members can read more here.