As many know, Executive Order 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity) revoked prior Executive Order 11246. E.O. 11246, which was issued in 1965, prohibited employment discrimination by the federal government and federal contractors and subcontractors based on race, color, religion, sex, or national origin. It also required federal contractors to create and maintain an affirmative action plan to ensure nondiscrimination practices were maintained.
E.O. 14173 contains provisions encouraging all private employers, regardless of federal contractor status, to end “illegal DEI” discrimination and preferences.
Since January 2025, when Executive Order 14173 was issued, many employers have asked, “What is illegal DEI”? The Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) recently released two technical assistance documents to educate the public about unlawful discrimination. They opine that under E.O. 14173 and Title VII of the Civil Rights Act of 1964, some employer diversity, equity, and inclusion (DEI) practices or programs may be considered unlawful.
Employers know well that Title VII prohibits an employer from taking an employment action motivated by or based on an individual’s race, color, religion, sex, or national origin. Therefore, since 1964, different treatment based on these protected classes is unlawful discrimination, no matter which employees may be harmed.
The following are examples:
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Disparate treatment may be an internship that is only open to individuals of a certain race or ethnicity; a leadership development program only open to members of one sex; a management bonus program where bonus amounts are determined, in part, by increasing diversity in the department; or choosing an equally qualified candidate over another because of their membership in a protected class.
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The technical document reminds readers that harassment is illegal when it results in an adverse change to a term, condition, or privilege of employment, or it is so frequent or severe that a reasonable person would consider it intimidating, hostile, or abusive. The EEOC/DOJ notes that some forms of DEI training could rise to the level of unlawful harassment. Keep in mind that certain states, including Colorado, have a lower standard for employees to prove to establish a harassment claim under state law.
The document What You Should Know About DEI-related Discrimination at Work points to Title VII and states that an employer initiative, policy, program, or practice may be unlawful if it involves an employer or other covered entity taking an employment action motivated – in whole or in part – by race, sex, or another protected characteristic. The document includes 11 questions and answers.
What Employers Can Do
Here are some next steps for employers:
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Review all of your policies, practices, training, and programs to determine if any fall into the four categories outlined above.
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Commit and take action to foster an inclusive workplace. An inclusive workplace promotes and sustains a sense of belonging; it values and practices respect for the talents, beliefs, backgrounds, and ways of living of its members.