Written by Lindsay Burke, Aaron Lewis, Carolyn Rashby, Amanda Michalski and Alex Thomson from Covington & Burling LLP on April 10, 2025
On April 3, 2025, 10 former Equal Employment Opportunity Commission (“EEOC”) officials, including former commissioners, general counsel, and Chairs Charlotte A. Burrows and Jenny R. Yang, issued a public letter responding to the recent EEOC technical assistance document, “What You Should Know About DEI-Related Discrimination at Work,” which we described in a previous blog post. The public letter, “Statement of Former Equal Employment Opportunity Commission (EEOC) Officials on Employer Diversity, Equity, and Inclusion Efforts,” refers to the technical assistance document as the “Acting Chair’s document” since that document was issued by Acting Chair Lucas without a Commission vote and thus represents Lucas’s views.
In the letter, the authors aim to correct the suggestion in the Acting Chair’s document that DEI programs are “fraught with legal peril” or per se unlawful, and state that the Acting Chair’s document “ignores important aspects of applicable law, as well as the reality that proactive efforts are still needed in America’s workplaces to provide equal opportunity for all employees and applicants.” The letter emphasizes that employers “lawfully may — and indeed should — take proactive steps to identify barriers that have limited the opportunities of applicants and employees based on any protected characteristic.”
The letter also calls out specific statements in the Acting Chair’s document as false or misleading. For example, it states that the Acting Chair’s document “suggests that an employer having an interest in having a diverse workforce means that the employer will use illegal race and sex-based preferences to serve that interest.” The former EEOC officials note that this position is not supported by case law, explaining that employers can “adopt effective and lawful mechanisms to support diversity by advancing equal employment for all employees.”
Clarifying existing federal law and official EEOC guidance, the authors explain that employers can lawfully express their interest in providing equal opportunity by having a policy that embraces diversity and by working to address barriers, including through employee training to promote inclusion and belonging and support for employee resource or affinity groups. The authors criticize the Acting Chair’s document for discouraging employers from providing DEI-related training and describe how training to promote inclusion, belonging, and equal opportunity can help employers meet their legal obligation to prevent harassment and other forms of discrimination. They also explain that despite the Acting Chair’s document’s suggestion that DEI-related training can expose employers to hostile work environment liability, it is rare for employees to meet the necessary legal standard to establish that DEI-related training created a hostile work environment, and “courts have been clear that an employee’s general discomfort with a training focused on race, sex, or another protected characteristics is not sufficient to create a hostile work environment.”
Furthermore, the authors state that the Acting Chair’s document may “unnecessarily heighten employers’ concern” about establishing employee resource groups, and they emphasize that the law does not prohibit employers from organizing voluntary employee resource groups “to address common experiences and provide a supportive environment,” so long as the groups are open to all employees. The letter notes: “For example, an employer may establish a group dedicated to supporting women in the workplace, but all employees – regardless of gender – should be permitted to join the group on the same terms. The group may restrict participation to those who support the objectives of the group in a manner that applies equally to all employees regardless of background.” Further, the authors explain, an employer should “apply the same approval process and criteria, including for material support,” to employees who are interested in organizing other employee resource groups designed to support, for example, men or non-binary employees.
Noting that it “is important for employers to have guidance on a positive forward-looking framework for lawful ways to increase diversity and remove barriers to equal employment opportunity in their workplaces,” the letter offers some additional best practices for legally permissible efforts to promote equal employment opportunity. These include broadening talent acquisition strategies, expanding recruitment initiatives and sourcing channels—which may include recruiting at historically Black colleges and universities and women’s colleges—and collecting and analyzing applicant and workforce demographic data to identify and address any barriers to equal opportunity in hiring, promotion, and compensation. The authors emphasize that demographic data should be collected on a voluntary basis, kept separate from job applications, and not shared with those involved with making employment selection decisions. The letter concludes by stating that the practices identified in the letter “more strongly anchor employment decisions in merit and success” and “ensure that employers carry out the equal opportunity mandate of federal law.”
The letter’s signatories are all former EEOC officials, so the letter does not necessarily reflect the current EEOC’s policy perspective and does not carry legal weight. It does, however, offer employers a different perspective and additional legal analysis concerning the legality of certain workplace DEI programs, and it suggests and clarifies specific practices that employers can, and perhaps even should, undertake to carry out the equal employment opportunity mandate of federal law.
