Compliance Stuff

In our March 24 2025, blog  post  we discussed the federal Equal Employment Opportunity Commission’s (EEOC) recent  guidance  regarding what constitutes unlawful “diversity, equity, and inclusion” (DEI) policies. Among other things, the guidance specifies that employees may claim a “hostile work environment’ (a form of unlawful “harassment”) by showing that an employer’s DEI training was discriminatory in content, application, or context. Under Title VII of the Civil Rights Act of 1964 (Title VII), harassment based on race, sex, or another protected characteristic is unlawful where (1) enduring the offensive conduct becomes a condition of continued employment, or (2) the conduct is sufficiently  severe  or  pervasive  to create a work environment that a reasonable person would consider  intimidating, hostile, or abusive . According to the  EEOC , “Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise...

  The U.S. Equal Employment Opportunity Commission (EEOC) recently released two technical assistance documents to explain what constitutes illegal diversity, equity, and inclusion (DEI) programs in the workplace. The technical assistance documents align with several  executive orders  on DEI that President Donald Trump issued shortly after he took office—which are being challenged in court. Quick Hits The EEOC recently issued two documents to clarify what the Trump administration considers to be illegal DEI programs. According to these documents, discrimination may occur if race, sex, or another protected characteristic is just one deciding factor, not the sole deciding factor, in an employment decision. The guidance suggests employers should open all training and mentoring programs to all demographic groups. The guidance confirms that employee resource groups or affinity groups may be unlawful if they are not open to everyone. On March 19, 2025, the EEOC released a techn...

  Within days of his second inauguration, President Trump issued a number of Executive Orders. While the impact of his Executive Orders will be seen with time, many employers may be left wondering how the Executive Orders addressing Diversity, Equity, and Inclusion (“DEI”) impact them. With these new Executive Orders, private employers [1]  are justifiably re-evaluating any action they have planned to take to move DEI forward. Private employers need to know two critical factors. First, the recently issued Executive Orders addressing DEI only cover the federal government workforce. Second, an Executive Order cannot replace or contravene statutes enacted by Congress (federal laws), state laws, or Supreme Court precedent . As such, all federal laws, state laws and Supreme Court precedent prohibiting employment discrimination remain intact and unchanged by the recent Executive Orders, and significant changes to internal DEI efforts may result in increased discrimination claims....

  How prepared is your organization?   Since the U.S. Supreme Court’s decision in  Students for Fair Admissions, Inc. v. President & Fellows of Harvard College , Diversity, Equity and Inclusion policies have faced increased scrutiny. Practices promoting DEI are continuing to be challenged by activists, workers, and politicians. Hardly a day goes by when DEI is not in the news in some fashion. In case you missed it, you can check out a few examples,  here ,  here , and  here . Consider these ten ways to avoid having your DEI practices become the next target: No. 1:   Don’t tie executive compensation to attainment of diversity goals.  Such a practice is not  per se  unlawful, but it could provide powerful evidence to support a claim that managers made employment decisions based on protected characteristics . The State of Missouri relies on this type of monetary incentive in its  lawsuit against IBM  alleging discriminati...