Attorneys: EEOC’s DEI focus doesn’t change law

By Kris Olson

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Amid the flurry of executive orders President Donald Trump signed immediately upon returning to office was one titled: “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” It was a declaration of war against the amorphous concept of “DEI” and what the order described as an “unlawful, corrosive, and pernicious identity-based spoils system.”

A little over three weeks later, Massachusetts Attorney General Andrea J. Campbell and 15 of her colleagues fired a return volley, urging private employers in a five-page guidance document to stay the course on diversity, equity, inclusion and accessibility efforts.

The executive order and related federal executive actions do not and cannot overturn longstanding civil rights and anti-discrimination laws, values and practices, the AGs noted.

“In addition, they do not and cannot strip employers and workers of their federal and state constitutional rights to speak freely — in their policies, training, and daily interactions — about lawful best practices for growing and supporting private and public sector workforces,” the letter continued.

The latest salvo came on March 19, when the Equal Employment Opportunity Commission released two documents, a one-pager for employees titled “What to Do If You Experience Discrimination Related to DEI at Work,” and a longer FAQ-style document. The publications offered some additional insight into what constitutes “illegal DEI” according to what’s left of the EEOC, which lacks a quorum after Trump removed two commissioners.

The Trump EEOC and state attorneys general disagree about less than it may appear at first glance, according to management-side employment lawyers.

“The areas of disagreement between pro-DEI and anti-DEI forces are very narrow,” Boston attorney Christopher S. Feudo said.

He points to the EEOC’s admonition against making job decisions based on people’s membership in a protected class.

“That’s been the law since the 1960s; we know this,” he said.

Boston attorney David C. Kurtz said what his firm has been consistently telling clients is, “If your practices were legal prior to this administration, they’re legal now; if they were illegal prior to this administration, they’re still illegal now.”

Massachusetts attorney Mark M. Whitney agreed.

“I think that the EEOC has had trouble getting around the decades of court precedent and interpretation of laws. That just doesn’t all get wiped away by an executive order,” the Marblehead lawyer said.

Still, in states with “progressive” or expansive employment laws like Rhode Island, meeting mandates under state and federal law that are at odds with one another will present a challenge for the foreseeable future, said Johnston attorney Matthew C. Reeber.

“What I’ve been saying to my employer clients is it’s a lot easier to be an employer in Alabama right now because state law there matches up with federal law,” he said. “Here in Rhode Island, the Fair Employment Practices Act and the Rhode Island Civil Rights Act are going to place obligations on employers with which this new EEOC guidance on DEI is going to conflict. That’s just the reality of being an employer in Rhode Island.”

There are lessons to be gleaned from the new documents, in terms of the lens the EEOC will bring to those longstanding laws and practices, attorneys say.

For example, while the EEOC has long been concerned about discrimination in hiring and firing, the one-page document highlights exclusion from training, fellowships and mentoring or sponsorship programs as other forms of “disparate treatment” with which the EEOC will be concerned.

“What’s particularly helpful was the identifying of some of the situations or moments in time in the course of an employment or employment decisions that employers should be mindful of,” said Kurtz’s colleague, Alexandra D. Thaler.

However, nothing in the documents offers a radical new interpretation of the law, according to lawyers.

The law in the 1st Circuit has always been what the EEOC guidance is saying, said Providence attorney Alicia Samolis. For example, the law has always been that the standard of proof in a discrimination case is exactly the same, whether the plaintiff is inside a historically disadvantaged protected class or a young, white male, she said.

Employers have also never been able to give “plus factors” to job candidates, nor was so-called “reverse discrimination” ever OK, according to Samolis.

“From the legal context, the law isn’t really changing based upon this guidance,” she said. “It’s more that the chances that somebody gets a lawsuit have changed, and potentially employees’ attitudes have changed.”

Come one, come all

One topic addressed by both the state AGs and the EEOC is what has become known as employee resource groups, or ERGs, which the AGs noted are designed to “create an inclusive and supportive space where employees of particular backgrounds or common experiences feel valued and heard.”

The EEOC has now warned that membership in such groups should not be limited to certain protected groups but instead should be open to all.

That comports with advice that they have long been giving their clients, lawyers say.

The “i” in DEI stands for “inclusion,” Thaler noted.

“We’ve always counseled that you’re not actually accomplishing what it is that you’re saying you’re going to accomplish if you are, in fact, excluding people,” she said.

Have there been instances in which well-meaning companies have had so-called affinity groups that were restrictive?

“Maybe that happened, but, in my experience, it doesn’t happen that often anymore,” Boston attorney Catherine E. Reuben said. “We tell our clients it’s fine to have workplace initiatives that celebrate and educate about issues faced in different communities. But make them open to all — that’s an easy one.”

Kurtz said it is often helpful to use the test of inserting the words “white male” into the description of the workplace initiative and see if it would still be received favorably.

“What I’ve always said about affinity groups or ERGs is, yes, they’re going to naturally attract people who fall within the area that’s being discussed,” he said. “But it can be a very valuable experience for people who are not of that race, that national origin, that gender, that sexual orientation to hear the experience and be part of it and learn from it.”

Some employers may not have paid that much attention to the risks of not making such groups inclusive because they have been formed with the “noble goal” of promoting diversity in the workplace, Feudo said.

“I think employers really have to be paying attention to the fact that, however noble the goal of increasing your diversity within the workplace, you can’t use unlawful means to do it,” he said.

The same is true with mentoring programs, Feudo added. If a man’s female coworkers are all invited to attend a mentoring program and he is excluded, recent case law makes clear that such circumstances may well give rise to a meritorious Title VII claim.

Here, too, Feudo said, the EEOC is not making “earth-shattering statements.”

Training the trainers

If there is one sentence in the EEOC’s guidance that might set off alarm bells, attorneys agreed that it is the one that reads: “Depending on the facts, DEI training may give rise to a colorable hostile work environment claim.”

Reuben recalled a time when, as a junior lawyer, she gave a training in which she offered examples of “things you shouldn’t say because they would be deemed discriminatory.”

“That was not a smart thing for me to do because by saying those things, I was underscoring them,” Reuben said.

While the term “reverse discrimination” may be falling out of favor, Samolis said she has long believed it important to incorporate the concept into employee training that, in the examples being discussed, the forms of discrimination can go in either direction, particularly among atypical employee groups, such as nurses, who are predominantly women.

“Reverse discrimination” has been part of some of the worst disputes with which she has been involved because there tends to be more evidence that is damning to the employer in writing.

“The problem is you have people who are well-intended, and they don’t realize that it’s equally as illegal to say ‘our next CEO needs to be Black’ or ‘the next person we elevate to the C-suite needs to be a woman,’” Samolis said.

When statements like that are in writing, “the burden of proof is thrown out the window, the whole issue of causation is thrown out the window, and you’re left with a very, very difficult-to-defend case,” she said.

What Springfield attorney Amelia J. Holstrom tells Massachusetts employers is to make sure that the training they are doing on diversity, equity and inclusion complies with Title VII and state law.

“It’s strongly advisable that they have that [training] reviewed by an attorney before they give that training to everyone in their workplace,” she said.

Reeber did not dismiss the idea that it could be helpful for employers to rebrand DEI training as “civility” training. But even under a new label, an employee may engage in the protected activity of objecting to participating.

At that point, Reeber said, an employer might consider asking itself: “Is there harm in saying, ‘All right, you don’t have to participate in the training?’”

Holstrom agreed that employers might consider making the training optional for people to attend instead of mandatory.

Meanwhile, attorneys were somewhat encouraged by the EEOC using the word “may” in its guidance on DEI training.

“They were very clear to say that they’re not saying that certain types of training, like training that talks about white privilege or unconscious bias, which are big triggers for a lot of people on the anti-DEI side, per se can create a hostile work environment,” Feudo said.

While some may try to argue that such a training gives rise to a hostile work environment claim, Feudo suspects that they will rarely succeed.

“None of the DEI professionals that I’ve ever interfaced with would run a training that I think would run afoul of Title VII’s prohibition on hostile work environments,” he said.

The key concept when doing training on topics such as implicit bias is to make sure that the training is balanced and reflects everyone’s experiences, Kurtz said.

Thaler noted the EEOC cited the U.S. District Court of the Eastern District of Pennsylvania case De Piero v. Pennsylvania State University, which notes that training on concepts such as white privilege, white frailty, implicit bias or critical race theory can contribute positively to nuanced, important conversations about how to form a healthy, inclusive work environment. The training just must be done the right way.

The key questions are: “Is it done even-handedly? Is it done in a way that isn’t vilifying one group over another, but rather just exposing people to concepts and helping open conversation about these things?” Thaler said.

The courts as failsafe

At the end of the day, another source of comfort for attorneys is that the courts will rein in the EEOC, if necessary.

Reuben pointed to the recent letters sent by the EEOC to 20 law firms, seeking a wealth of “high-level private statistics” (see sidebar).

“Is there some risk here that the EEOC is going to say, ‘We noticed that you’ve promoted a lot of women and minorities to partner, and we think that those promotions must have been discriminatory’? I don’t think they’re going to go that far,” she said.

Even it did, while the EEOC has the authority to investigate, its remedy would be to file a complaint in court. The courts will then have an opportunity to assess whether the evidence on which the EEOC relies actually establishes a violation of the statutes that the EEOC enforces, Reuben said.

“There is a stopgap here, if the concern or the fear is that the enforcement is going to be overly aggressive,” she said.

There is an interesting wrinkle to those court challenges to come, Whitney noted. Last year, in the case Loper Bright Enterprises v. Raimondo, the U.S. Supreme Court ended the doctrine known as “Chevron deference,” empowering courts to interpret statutes independently rather than defer to federal agencies’ interpretations of ambiguous laws.

“That’s going to cut against the EEOC trying to bend to the will of their dear leader’s desires and push the envelope on these DEI proclamations,” Whitney said.

In one sense, the EEOC’s newfound interest in DEI is not so unusual, Reuben said. When presidential administrations change, so too do their enforcement priorities.

A previous administration might have said, “We want to go after polluters,” Reuben said. It would then be left to the courts to sort out whether the executive branch agency had engaged in overreach.

However, this still feels different from the “boring swing back-and-forth of the pendulum” that occurs when a new president, say, appoints new members of the National Labor Relations Board with a different perspective on the question [of] whether to ban noncompete agreements, Whitney said.

“I’ve seen the pendulum swing back and forth, but nothing like this. This is like a sledgehammer,” he said.

Whether attorneys like the new administration’s priorities or not, their clients need to be aware that the EEOC is hyper focused on DEI right now,” Reuben said.

Reuben’s colleague, Sophie A. Levine, encourages employers to have their counsel conduct a privileged review of their policies to point out what could be problematic under the EEOC’s new guidance.

The bottom line, though, is that “DEI” has not suddenly become off limits.

“The EEOC is just saying that we are aware that sometimes these programs can be administered in an unlawful way,” Levine said.

Employers should not rush to get rid of these programs, especially when some programs may be legally required, she added. Several states require employers to conduct anti-harassment training, which some might consider a type of training aimed at promoting diversity, equity and inclusion, for example.

“The executive order and the EEOC guidance do not take away that legal requirement,” Levine said.

Still, Samolis believes Trump’s executive orders and the related EEOC guidance will result in less DEI in the workplace. That’s not out of fear but because businesses will be prompted to reevaluate their programs to ensure they are worth the effort.

There was a time when employers saw DEI initiatives as nothing but “upside,” like giving employees Fitbits to encourage them to stay active and healthy, Samolis said.

Now, even if all an employer’s initiatives are 100 percent legal, there will be employees who will experience them in a negative way — either because they feel discriminated against or because they are frustrated that an ERG’s powers are limited and cannot advocate for things like additional training opportunities for employees of color. Lawsuits will continue to be filed.

“I do think that the likely outcome of this sort of discussion is going to be less DEI efforts, not just somewhat modified [efforts] and people being more careful to follow the law,” Samolis said. “I do think that more companies will think, ‘Is it really worth it in the end?’” RILW