Even without a quorum, EEOC Acting Chair Andrea Lucas is working to reshape policy to align with the new administration.  A “technical assistance” memo on “DEI-Related Discrimination” issued by Acting Chair Lucas warns employers that there is no such thing as “reverse discrimination.”  Basing employment decisions on protected characteristics, even if the only individual adversely impacted is white, is a form of unlawful racial balancing.  Similarly, the technical assistance warns that actions taken in the name of “diversity” to meet client or customer requests is not a defense to a claim of intentional discrimination.

The technical assistance specifically flags as problematic a range of initiatives that employers have historically incorporated in workplace diversity, equity, and inclusion (DEI) initiatives.  Those fall into four broad categories:

• targeted support services;
• the “Rooney Rule” of a diverse slate;
• employee resource groups; and
• DEI training.

Targeted Support Services

Following the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard College, which invalidated the use of race as a factor in college admissions, Acting Chair Lucas issued repeated warnings applying the same principles to the employment law context.  In the months following the Students for Fair Admissions decision, law firms and other organizations faced lawsuits over special internship and other career enhancement programs that limited participation to individuals in certain racial or other groups.

It is therefore unsurprising that Acting Chair Lucas reiterated in the technical assistance memo that measures that rely on one or more protected characteristics as an eligibility or selection criterion are a form of unlawful racial balancing.  These include: training, mentoring, or sponsorship programs; internships or fellowships; and other career enhancement opportunities.  Employees of all backgrounds should be able to participate in these types of programs, according to the technical assistance, and employers that limit entry to individuals of a particular racial group or based on another protected characteristic thereby risk being found in violation of the EEO laws.

The ”Rooney Rule”

The technical assistance additionally classifies the practice of seeking a diverse slate of candidates for job selection to be a potential form of discrimination.  Employers seeking to diversify their organizations have for years required that the pool of interview candidates be broadened to include some representation of women and/or racial minority candidates.  This practice aligns with the historical focus of the “Rooney Rule,” named after the former chairman of the Pittsburgh Steelers, who was instrumental in pushing for a requirement that teams in the National Football League interview at least one ethnic-minority candidate for head coaching and senior football operation positions.

The theory is that the requirement pushes recruiters and hiring managers to consider a broader pool of candidates. The technical assistance takes issue with the process of creating the diverse slate, as doing so “can require employers to ask or otherwise obtain pre-employment information about race, or another protected characteristic,” which can thereby suggest that race will be used as a basis for making selection decisions.  Employers are cautioned that, “[i]f the information is used in the selection decision and members of particular racial groups are excluded from employment, the inquiries can constitute evidence of discrimination.”

Significantly, the technical assistance memo is not precluding employers from continuing to use a diverse slate but cautioning consideration of how that approach is implemented.

Employee Resource Groups

Employee resource groups (ERGs) or other affinity groups can serve as an informal networking and support group within an organization.  To the extent that membership in these groups is limited to those who fall within a particular racial, ethnic, or other minority group, however, the technical assistance warns that employers “cannot allow racial bias to affect an employee’s ability to become part of these networks.”

Again, the technical assistance memo does not preclude employers from continuing to support ERGs, but rather advocates that membership in an ERG should be open to all employees who wish to participate.  Allyship can be instrumental in furthering inclusiveness for employees of differing backgrounds.  Moving beyond legal considerations, ERGs that preclude the participation of those who do not fall into the ERG’s designated demographic thereby overlook an important resource.  ERGs that are concerned broadening participation will dilute the group’s focus can utilize mission and purpose statements and management of meeting agenda to stay on topic and address that concern, without limiting membership.  In extreme situations of disruptive behavior, ERGs can turn to general organization policies on appropriate workplace conduct and seek support through the ERG sponsor and human resources.

DEI Training

The technical assistance posits that DEI training can plausibly create a basis for a hostile work environment claim if the employee can show it was discriminatory in content, application or context.  It further states that an individual who opposes unlawful employment discrimination related to a DEI training or other policy or practice labeled as DEI may thereby be engaged in protected activity, under the laws prohibiting retaliation.

The technical assistance cited Hartman v. Pena (N.D. Ill 1995), a case involving a three-day mandatory cultural diversity workshop that included a role-reversal exercise that simulated men walking a gauntlet between women employees who were making sexual or similarly offensive comments and touching them.  It also cited DePiero v. Pennsylvania State University (E.D. Pa. 2024), in which a professor complained of being required to attend a series of training programs on systemic racism that targeted white men like him.

The training approach as described in both of those cases presents as provocative to an extreme degree.  The harassment prevention training that is currently mandated by state laws in Connecticut, New York, California, and Illinois, is quite dissimilar from that described in those two cases.  Similarly, most workplace training programs that organizations may conduct will not rise to the level of even a plausible hostile work environment claim, but it is prudent for organizations to vet such programs.

Where That Leaves Employers

The technical assistance lacks the authority of a guidance document or a regulation, but it is helpful in understanding the positions that the acting chair will seek to take over the coming years.  None of the flagged areas (targeted support services, diverse slate, employee resource groups, and DEI training) are per se unlawful; there is nuance to how each of these programs and practices are defined and implemented.  Employers should get legal advice with respect to whether to retain and how best to structure their internal practices, consistent with the technical assistance memo.

By Tracey I. Levy