Peter A. Steinmeyer, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Chicago office, contributed to the Labor & Employment section of Practical Law The Journal’s GC Agenda: May 2025. (Read the full version – subscription required.)
Following is an excerpt:
A round-up of major horizon issues for general counsel. …
Labor & Employment
Scrutiny of Workplace DEI Initiatives
Employers should anticipate greater federal agency scrutiny of DEI initiatives and monitor agency guidance for new legal interpretations and enforcement priorities.
The EEOC and Department of Justice issued technical assistance materials warning that DEI initiatives may be unlawful if they spur employment actions motivated in any part by race, sex, or other protected characteristics. While this guidance is not binding law, employers should expect the EEOC to investigate whether employees’ protected characteristics motivate, even as a plus factor, employment decisions, such as whom employers hire, retain, promote, assign work, or provide training, mentoring, networking, and sponsorship opportunities.
Based on the recent federal agency guidance and anticipated scrutiny of DEI initiatives, employers should:
- Understand that Title VII of the Civil Rights Act of 1964 (Title VII) and other applicable antidiscrimination laws prohibit discrimination against applicants and employees based on protected characteristics, regardless of whether the victims’ characteristics place them in the minority or majority.
- Audit employment practices to ensure employment decisions are not impacted or motivated in any part by protected characteristics or headcounts for individuals with those characteristics.
- Review internal and external publications, such as websites and corporate disclosures, to ensure that statements about DEI commitments, goals, and targets do not indicate that employment practices and decisions might be based on protected characteristics.
- Audit internship, mentoring, training, and networking programs to ensure that access to opportunities is not impacted by applicants’ or employees’ protected characteristics. For example, internship or leadership-development training programs may not be exclusively for individuals with certain protected characteristics.
- Confirm that affinity or business resource groups permit full participation and membership by all employees without regard to any protected classification.
- Monitor federal agency scrutiny of DEI training, including how the EEOC determines whether training is unlawfully discriminatory in “content, application, or context,” and evaluates employee claims of alleged retaliation for opposing DEI training purported to violate Title VII.
- Anticipate other federal agencies to separately scrutinize DEI initiatives of employers that supply and contract with the federal government.
