On July 29, the Division of Justice (through the Workplace of the Legal professional Normal) issued a prolonged memo to federal companies offering “steering” on what could represent illegal discrimination by recipients of federal monetary help. Whereas the steering doesn’t carry with it the power of legislation, it offers a transparent window into the enforcement technique of the federal authorities on the subject of evaluating DEI applications for illegal discrimination.
On its face, the steering applies solely to recipients of federal monetary help. Nevertheless, the ideas set forth within the steering are prone to be utilized by the U.S. Equal Employment Alternative Fee to all employers underneath Title VII.
The steering goes past DEI within the employment context, masking academia and different sectors as effectively. Nevertheless, this text focuses solely on employment points and solely on three of the extra salient employment points addressed within the DOJ memo.
1. Preferential remedy
Let’s start with the fundamentals: employers can’t present preferences primarily based on race, intercourse or different protected traits when making employment selections, similar to hiring and selling. This implies no quotas, set asides or “plus” elements. The legislation is evident that there is no such thing as a “range” exception to illegal discrimination.
One particular callout: the DOJ has taken the place that “various slate necessities” possible are illegal. The EEOC beforehand has taken the identical place. So has the U.S. Workplace of Personnel Administration.
It is very important notice that various slate necessities aren’t the last word employment determination. This implies that the DOL and different authorities companies will focus not solely on final employment selections but in addition on the processes main as much as them. Employers ought to do the identical.
2. Use of “proxies”
The DOJ memo focuses closely on using proxies. Illegal proxies are outlined as impartial standards that perform as substitutes for specific consideration of race, intercourse or one other protected attribute. In response to the memo, such proxies could also be illegal if both:
- They’re chosen as a result of they correlate with, replicate or are used as substitutes for protected traits.
- They’re applied with the intent to benefit or drawback people primarily based on protected traits.
The federal government’s deal with intent, whereas not new, is essential as employers consider their DEI applications or practices, whatever the identify given to such applications or practices.
For instance, let’s assume an employer recruits at a traditionally Black faculty or college. If the employer recruits there to extend the range of the applicant pool, its intent could also be challenged as utilizing an HBCU as an illegal proxy. Conversely, the employer’s place is stronger if the employer recruits on the HBCU due to the expertise there.
Employers ought to deal with advantage and never demographic range on the subject of recruiting as effectively. Meaning employers ought to search to increase the expertise within the applicant pool versus rising the pool’s range.
As a result of intent issues, so do the phrases we use and the documentation we keep.
3. Segregation
In response to the DOJ memo, segregation happens the place a program, exercise or useful resource “separates or restricts entry primarily based on race, intercourse, or different protected traits,” even when the acknowledged objective is to extend inclusion or handle historic disparities. Whereas DOJ focuses extra on the tutorial context, prior steering from the DOJ, the EEOC and the OPM fill the hole. Concerning worker useful resource teams, when HR professionals are prone to run into this subject, three common ideas apply:
- The ERG can’t be explicitly or “functionally” restricted primarily based on race, intercourse or one other protected attribute. In plain communicate, a girls’s initiative have to be open to males.
- There can’t be segregation within the coaching or different choices of the ERG, even when the coaching and sources which are provided to the segregated teams are the identical in content material and useful resource allocation.
- The time period “functionally” is used within the OPM memo. To attenuate the chance of useful restrictions on participation in an ERG, employers ought to think about to who’s invited or inspired to attend — and discouraged from attending — ERG occasions, formally or unofficially.
Whereas the DOJ memo calls out segregation as typically impermissible, it additionally states that failure to take care of sex-separated intimate areas additionally could violate federal legislation. To cite the steering:
“Federally funded establishments that permit males, together with these self-identifying as ‘girls,’ to entry to single-sex areas designed for females — similar to bogs, showers, lockers or dormitories — undermine the privateness, security, and equal alternative of ladies and ladies.”
This place echoes the place the EEOC has taken in addition to prior steering from the DOJ in its Civil Rights Fraud Initiative.
Nevertheless, relating to entry to bogs, the place of the federal authorities differs from the enforcement place of some state and native companies. Past the scope of this text, there are myriad choices for employers to think about to handle the competing dangers on this space.
Whereas I’ve centered right here on solely three of the extra salient points posed by the DOJ memo, employers are effectively suggested to learn the DOJ memo in its entirety to assist assess their potential publicity by clicking right here.
