7 minute read | June.03.2024
In the wake of last year’s historic Supreme Court decision striking down affirmative action in college admissions, employers and others have been asking the Equal Employment Opportunity Commission to provide guidance on how the decision impacts corporate Diversity, Equity and Inclusion initiatives.
The EEOC has not issued new enforcement guidance on DEI since the landmark decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (known collectively as SFFA).
Although the EEOC is unlikely to place DEI rulemaking on the regulatory agenda, the agency is finding ways to make its view known about how employers can lawfully continue DEI programs without violating Title VII of the Civil Rights Act. EEOC regulations, guidance and recent amicus filings provide good insights into the EEOC’s stance.
Given the continued uptick in litigation targeted at dismantling DEI, it is more important than ever for employers to ensure their DEI efforts comply with Title VII and are consistent with the EEOC’s latest guidance, be it through subregulatory means, amicus filings or otherwise.
The EEOC enforces federal anti-discrimination laws, including Title VII, which prohibits discrimination based on race, color, religion, sex or national origin with respect to the terms, conditions or privileges of employment.
Fueled in part by Justice Gorsuch’s concurring decision in SFFA connecting Title VI (the focus of SFFA) with Title VII just “next door,” the EEOC has received dozens of investigation demand letters from America First Legal (AFL), a conservative think tank that markets itself as “the long-awaited answer to the ACLU.”
Each AFL letter, accompanied by a press release, targets a corporate DEI program. The letters selectively quote from the target company’s publicly available materials, such as DEI or ESG reports and SEC filings, to claim that illegal race-based preferences are taking place, which AFL describes as blatantly discriminatory under the guise of advancing DEI.
Although the AFL and media describe the AFL’s letters as “filing” civil rights complaints, in reality the EEOC only conducts investigations in response to the filing of an EEOC charge. And the only way the EEOC could investigate the AFL’s letters (which do not identify any harmed applicants or employees and, therefore, are not EEOC charges) would be through one of the EEOC’s five politically appointed commissioners filing a commissioner’s charge. All EEOC charges are confidential, however, so there is no way to know whether a commissioner’s charge has been filed in response to the AFL’s letters. And even if one commissioner files a charge, the views of a single commissioner do not represent the views of the commission. The EEOC as a whole can “speak” only through a majority vote of five bipartisan, Senate-confirmed commissioners.
Well before SFFA, the EEOC has issued binding regulations and non-binding enforcement guidance on affirmative action and DEI, which traces back to the seminal Title VII Supreme Court cases United Steelworkers of Am. v. Weber, 443 U.S. 193, 194 (1979) and Johnson v. Transp. Agency, Santa Clara Cnty., 480 U.S. 616, 640 (1987).
In Johnson and Weber, the Court clarified that employers may engage in race-conscious employment decisions, such as affirmative action, where specific circumstances show the proposed action is narrowly tailored to remedying the effects of past discrimination without unnecessarily trammeling the rights of those outside the target group. The EEOC’s corresponding regulations from 1971 parrot the same standards and limit race conscious affirmative action to circumstances narrowly tailored to remedy past discriminatory practices.
However, the regulations also encourage employers to implement other affirmative measures to combat the impact of historically suppressed labor pools. These proposed measures sound similar to today’s typical DEI initiatives, such as training plans that “emphasize providing minorities and women with opportunity, skill and experience necessary to perform the functions of skilled trades, crafts or professions,” and “extensive and focused recruiting activity.”
The EEOC also has made sub-regulatory guidance available through publishing chapters from its Compliance Manual. For instance, the EEOC has published Section 15 of the Compliance Manual on Race and Color Discrimination (2006) on its website, which includes the following DEI-focused guidance:
Title VII permits diversity efforts designed to open up opportunities to everyone. For example, if an employer notices that African Americans are not applying for jobs in the numbers that would be expected given their availability in the labor force, the employer could adopt strategies to expand the applicant pool of qualified African Americans such as recruiting at schools with high African American enrollment. Similarly, an employer that is changing its hiring practices can take steps to ensure that the practice it selects minimizes the disparate impact on any racial group. For example, an employer that previously required new hires to have a college degree could change this requirement to allow applicants to have a college degree or two years of relevant experience in the field.
Today, the EEOC’s commissioners consist of three Democratic appointees (Chair Charlotte Burrows, Vice Chair Jocelyn Samuels and Kalpana Kotagal), and two Republican appointees (Andrea Lucas and Keith Sonderling). Shortly after the SFFA ruling, EEOC Chair Burrows reassured employers that SFFA in no way impacted corporate DEI. In a statement, Chair Burrows wrote:
The [SFFA] decision . . . does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background. It remains lawful for employers to implement DEI and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.
While Chair Burrows did not address specific DEI initiatives that advantage applicants and employees based on race, Commissioner Lucas tackled those programs head on. In Commissioner Lucas’ post-SFFA statement, she reminded employers that Title VII has always prohibited using race as a factor in employment decisions. She also stated the SFFA decision should prompt employers to “take a hard look” at corporate diversity programs, especially those that “explicitly or implicitly” take race into account when making employment decisions, such as through “race-restricted internships, race-restricted mentoring, [and] race-focused promotion decisions,” which may already be “violating the law.”
Beyond individual statements about DEI, the commissioners voted in September 2023 to publish a new Strategic Enforcement Plan for fiscal years 2024–2028 that includes “promising practices to help prevent discrimination in the workplace.” The Executive Summary states:
The EEOC will support employer efforts to implement lawful and appropriate diversity, equity, inclusion, and accessibility (DEIA) practices that proactively identify and address barriers to equal employment opportunity, help employers cultivate a diverse pool of qualified workers, and foster inclusive workplaces.
Of course, the 2024 strategic enforcement plan says nothing new. As explained above, eliminating barriers and creating diverse applicant pools has long been the EEOC’s recommended approach to DEI.
The EEOC’s most recent tool to make its stance on DEI known has been through its amicus program. The EEOC typically files amicus briefs on behalf of parties in cases “that raise[] novel or important issues of law” under the statutes the EEOC enforces.
Recently, the EEOC filed two amicus briefs involving affirmative action and DEI.
Want to know more? Ask one of the authors.