Employers are on Notice: Disparate Treatment due to DEI-Based Policies is Still Discrimination.

Discrimination, as defined in the Title VII of the Civil Rights Act of 1964 (“Title VII”), is defined as “disparate treatment” meaning where one person is treated differently from another simply because he or she is part of a protected class such as being a specific race, gender, religion, or national origin.

DEI, or “Diversity, Equity, and Inclusion,” based policies, by its very name indicates why such policies are rooted in discrimination: these policies require an employer to perceive and consider an employee’s race, gender, religion, or national origin in order to determine whether their work environment is sufficiently diverse, equitable, or inclusive. In fact, given our current political climate and the fact that large American corporations have voiced support for DEI- based policies, some people believe that DEI-based policies are needed in the workplace to protect minorities.

However, the U.S. Equal Employment Opportunity Commission’s (EEOC), the entity in charge of enforcing Title VII against employers with 15 employees or more, has made clear that treating anyone differently based on that person’s membership in a protected class is still considered discrimination. This is true regardless of whether the person being treated differently is treated positively or negatively. In other words, DEI-based policies that aim to protect an employee or include an employee based solely on one of those protected classes is clearly discrimination. Protecting or including an employee based solely on one of those protected classes with the aim of making the population of employees more diverse is, likewise, discrimination. Taking an employment action in favor of or against an employee simply because that employee is a minority is in essence discriminating against the non-minority (and in favor of the minority). Some individuals refer to this practice as “reverse discrimination.” However, the EEOC makes clear that “reverse discrimination” is simply discrimination.

Title VII forbids employers from treating any employee differently when the employer engages in any of the following employment actions:

• hiring,

• firing,

• promotion,

• demotion,

• compensation,

• fringe benefits,

• access to or exclusion from training,

• access to mentoring, sponsorship, or workplace networking/networks,

• internships,

• selection for interviews,

• job duties or work assignments.

In fact, the mere act of employers putting employees into different groups based on their race, gender, religion, or national origin would in itself be considered discrimination. This is true even if the employees ultimately get the same treatment. Merely putting them into a group based on these protected classes is prohibited. In addition, if an employer uses the employee’s race, gender, religion, or national origin as only one factor among many other factors in taking an employment action against that employee, that employer engaged in unlawful discrimination.

This is true even if the employer took an employment action because a client or customer expressed a preference or non-preference based on an employee’s race, gender, religion, or national origin. The customer is not always right. For example, employers cannot hire or fire employees based on their race, gender, religion, or national origin because the employer’s customers have requested to interact only with employees of certain race, gender, religion, or national origin. If an employer did this, the employer would be engaging in unlawful discrimination.

The bottom line is: the employer is not allowed to treat its employees differently at all. Employees of all backgrounds should receive the same mentoring, training, and access to workplace networks. All employment actions taken by an employer must not be based in any way on an employee’s membership in a protected class.