NEWS
New DEI Guidance in the US
On March 19, the U.S. Equal Employment Opportunity Commission (“EEOC”) and Department of Justice (“DOJ”) issued a press release and new technical guidance clarifying their legal position on diversity, equity, and inclusion (“DEI”) programs.
Key takeaways from the Guidance include:
- DEI is not defined in federal anti-discrimination law.
- Employment decisions must be based on knowledge, skills, and abilities, and cannot be motivated in whole or in part by race, sex, or another protected characteristic.
- There is no such thing as “reverse discrimination,” only “discrimination”.
- Business necessity based on “diversity interest” is not a defense to a discrimination claim.
- Separating employees into groups based on race, sex, or another protected characteristic is prohibited.
- DEI training could lead to an actionable hostile work environment claim if the training is discriminatory in content, application, or context.
US employers are advised to:
- Audit DEI policies and training programs to ensure there are no unintentional violations of federal anti-discrimination laws as interpreted by the new Executive Orders and EEOC/DOJ Guidance.
- Review compliance with state and local anti-discrimination laws when making changes under federal laws as they may have inconsistent requirements.
UK Position
UK law has differed historically from US law in that some US employers have been subject to government affirmative action requirements to set goals for hiring and promoting individuals from underrepresented groups. UK employers do not have such government-mandated requirements, and are not generally permitted to give preference to workers with protected characteristics who apply for jobs or promotions. DEI policies in the UK are designed to create a level playing field and not to favour one group over another. UK employers could face a greater risk of legal action if they were to abandon policies designed to enable DEI.
Caspar Glyn KC, the chair of the UK Employment Lawyers Association, has said that defending a company against discriminatory acts made by an employee was already difficult but “would be hopeless” without DEI policies in place. Glyn also said employers without DEI policies would be unlikely to be able to demonstrate that they had taken “all reasonable steps” to prevent sexual harassment, for example, which they are legally required to do. The Employment Rights Bill, due to be approved by Parliament, will only strengthen that requirement.
The best of times or the worst of times?
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