Promoting DEI Legally: 11 Tips Straight from the EEOC Acting Chair

Employers striving to enhance diversity, equity, and inclusion (DEI) have faced stiff headwinds recently from the federal government. The EEOC’s latest release, “What You Should Know About DEI-Related Discrimination at Work,” is more about what employers can’t do than what they can to promote DEI.

Underscoring the importance of caution, the EEOC has reminded employers that race, sex, or ethnicity-based preferences in DEI programs risk violating anti-discrimination laws. These announcements specifically warn against quotas, explicit racial or gender preferences, and any programs that could create perceived or real discriminatory outcomes.

The guidance aims to “help employers take action to avoid unlawful DEI-related discrimination,” noted EEOC Acting Chair Andrea Lucas.

But are there lawful actions employers can take to promote diversity, equity, and inclusion principles?

Yes. Ms. Lucas herself provided eleven solutions last year on an episode of Cozen O’Connor’s Employment Law Now podcast, hosted by Michael Schmidt. You can listen to them starting at 31:33 in the recording. Additionally, I’ve summarized them below.

Andrea Lucas’s Recommendations for Lawful DEI Initiatives:

1. Audit Job Descriptions: Eliminate unnecessary job and degree requirements.
2. Audit Job ads and interview questions: Ensure job ads and interview questions do not include race or sex preferences. The same applies to job descriptions.
3. Standardize Interviews: Adopt uniform questions across similar roles to limit subjective biases. Eliminate questions about “fit,” especially if code for a protected class.
4. Formalize Promotions: Replace informal, subjective internal promotions such as “tap-on-the-shoulder” practices with transparent, standardized processes. Consider using opt-out methods to ensure all eligible employees are considered.
5. Inclusive Mentorship and Sponsorship: Provide mentorship and sponsorship programs open to all, rather than creating exclusive groups based on race or sex.
6. Universal Leadership Training: Offer leadership development training for all employees at a particular level without racial or sex restrictions.
7. Support First-Generation Professionals: Instead of aiming to boost social mobility, consider programs directed towards first-generation professionals without regard to any protected class. These initiatives could include additional training, employee resource groups, mentoring programs, and internships.
8. Individualized Training: Deliver training tailored to specific employee needs, avoiding racial or sex stereotypes.
9. Conduct Privileged Audits: Identify and address existing workplace discrimination or harassment rather than targeting broader societal problems.
10. Broaden Recruitment Efforts: Expand applicant pools by diversifying recruitment channels, including various colleges and advertising forms and formats (print, radio, electronic). Companies can also remove or lower job requirements (e.g., GPA) across the board to widen the applicant pool.
11. Rethink Work Culture: Address excessive workloads to minimize barriers disproportionately impacting women and economically disadvantaged employees. Promote healthier work-life balance for improved retention and mobility.

Conclusion:

Neither the EEOC resource document nor Ms. Lucas’s podcast comments are legally binding. However, together they affirm that employers can pursue meaningful DEI efforts if they maintain clear, legally compliant frameworks. Emphasizing equal employment opportunities and making merit-based decisions will help organizations foster a diverse, inclusive, and equitable workplace environment while avoiding potential legal pitfalls.