The administration is continuing its attack on DEI in the private sector. Last week, the Chair of the EEOC sent letters to the Fortune 500 urging companies to “remember” their obligations under Title VII. The letter cites several EEOC “education” documents that outline how the administration views the legality of DEI programs. The letter states:
“Earlier this year, the EEOC and the U.S. Department of Justice (DOJ) released educational resources about unlawful discrimination related to DEI in the workplace. As the EEOC noted upon publishing these materials, the widespread adoption of DEI in the Fortune 500 and elsewhere in our country does not change longstanding legal prohibitions against the use of race, sex, and other protected characteristics in employment. See Press Release, EEOC and Justice Department Warn Against Unlawful DEI-Related Discrimination.[2] To help educate the public about how well-established civil rights rules apply to employment policies, programs, and practices — including those labeled or framed as ‘DEI’ or other euphemisms — the EEOC and the DOJ therefore released a joint one-page technical assistance document, ‘What To Do If You Experience Discrimination Related to DEI at Work.’[3] The EEOC also released a longer question-and-answer technical assistance document, ‘What You Should Know About DEI-Related Discrimination at Work.'”
The letter also acknowledges that these educational documents are non-binding. Thus far, the administration’s efforts to crack down on private sector DEI have been a non-starter in the courts. The EEOC’s lawsuit against Starbucks in Missouri was dismissed last month. However, in addition to using anti-discrimination laws to target DEI, the administration is also looking to other legal theories, including antitrust. While the EEOC letter constitutes little more than a threat at this juncture, it does highlight the administration’s continued interest in litigating against companies with DEI programs. Time will tell if any of that litigation is successful.
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