The requirements of Title VII are critical for all employers to know. However, strict compliance with Title VII is more important than ever considering two recent developments: the Trump administration’s executive orders targeting diversity, equity, and inclusion (DEI) programs and the U.S. Department of Justice’s (DOJ) memo addressing criminal investigations of illegal programs.
Title VII applies to employers with 15 or more employees who have been working 20 or more weeks in the previous calendar year. The federal civil rights law also applies to governments, employment agencies, labor unions, and U.S. citizens employed by U.S.-controlled or owned companies in foreign countries.
Employers must take heed of Attorney General Pam Bondi’s recent memo promising criminal investigations into private companies’ DEI initiatives. The memo directs the DOJ’s Office of Civil Rights (OCR) to provide a report no later than March 1, 2025, containing recommendations for enforcing civil rights laws and ending illegal discrimination. The memo specifically identifies policies related to DEI and diversity, equity, inclusion, and accessibility (DEIA). The report also is to provide proposals for criminal investigations and civil compliance investigations of entities who meet the criteria in Executive Order 14173.
As a result of these directives, employers need to be prepared for close scrutiny of their hiring, promotion, or other employment-related practices by government agencies for any illegal discrimination. The DOJ specifically notes that illegal discrimination under Title VII includes discrimination against white and male employees and candidates. Not only should employers closely examine their current policies, but also their internal communications, both for the purposes of government investigations and private lawsuits that are sure to follow.
Employers should avoid initiatives prohibited by Title VII. Examples of prohibited initiatives or activities include the following:
- Implementation of a quota system, which includes setting specific hiring or promotion quotas based on race or sex, is a violation of Title VII.
- Giving preferential treatment based on protected characteristics, even if characterized as affirmative action, violates Title VII.
- Exclusionary practices that exclude certain demographic groups from participation, such as a mentorship program for women, violates Title VII.
- DEI training that relies on stereotypes about specific groups, including “unconscious bias” training, can create a hostile work environment and lead to discrimination.
- A policy or practice that seems neutral on its face can still violate Title VII if it has a disproportionately negative impact on a protected group, is not job-related, and is consistent with business necessity.
Due to the DOJ’s harsh stance on programs that it deems violative of Title VII, employers should be cautious about their employee recruiting, hiring, and training practices. As a result, employers should engage in broad-based recruiting to attract diverse qualified candidates and use job and skills-based criteria in hiring. Employers also should refrain from offering mentorship and sponsorship programs and ensure that any diversity training has a clear emphasis on inclusion. Employers can track diversity metrics related to recruiting, hiring, and promotions, but only to evaluate equal opportunity, not mandate quotas or preferential treatment. Finally, employers generally should engage legal counsel to help regularly review DEI programs.
To the extent that employers continue to embrace and value diversity, statements in favor of the benefits of diversity appear to be more palatable than those that require a preference for members of one group over another. Perhaps most importantly, employers should make hiring decisions using objective qualifications and merit, not on the basis of characteristics protected by Title VII.
HBL has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 470-571-1007
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