People have the right to openly speak about and even promote discrimination on their own time, that comes under freedom of speech, but they don't have a right to violate the rights of others under the law. The Equal Employment Opportunity Commission distinguishes between the two:
7. When is a DEI initiative, policy, program, or practice unlawful under Title VII?
Under Title VII, 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.
[13]
Among other things, Title VII bars discrimination (“disparate treatment”) against applicants or employees in hiring, firing, compensation, or any term, condition, or privilege of employment.
[14] The prohibition against discrimination applies to a wide variety of aspects of employment. In order to allege a colorable claim of discrimination, workers only need to show “some injury” or “some harm” affecting their “terms, conditions, or privileges” of employment.
[15] The prohibition against disparate treatment, including DEI-related disparate treatment, includes disparate treatment in:
- Hiring;[16]
- Firing;[17]
- Promotion;[18]
- Demotion;[19]
- Compensation;[20]
- Fringe benefits;[21]
- Access to or exclusion from training[22] (including training characterized as leadership development programs);[23]
- Access to mentoring, sponsorship, or workplace networking / networks;[24]
- Internships (including internships labeled as “fellowships” or “summer associate” programs);[25]
- Selection for interviews,[26] including placement or exclusion from a candidate “slate” or pool;
- Job duties or work assignments.[27]
Title VII also prohibits employers from limiting, segregating, or classifying employees or applicants based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities.
[28] This prohibition applies to employee activities which are employer-sponsored (including by making available company time, facilities, or premises, and other forms of official or unofficial encouragement or participation), such as employee clubs or groups.
[29] In the context of DEI programs, unlawful segregation can include limiting membership in workplace groups, such as Employee Resource Groups (ERG), Business Resource Groups (BRGs), or other employee affinity groups, to certain protected groups.
[30]
Unlawful limiting, segregating, or classifying workers related to DEI can arise when employers separate workers into groups based on race, sex, or another protected characteristic when administering DEI or any trainings, workplace programming, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources.
[31]
Employers instead should provide “training and mentoring that provides workers
of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascend to upper-level jobs.”
[32] Employers also should ensure that “employees
of all backgrounds . . . have equal access to workplace networks.”
[33]
8. Can an employer excuse its DEI-related considerations of race, sex, or another protected characteristic, provided that the protected characteristic wasn’t the sole or deciding factor for the employer’s decision or employment action?
No. For there to be unlawful discrimination, race or sex (or any other protected characteristic under Title VII) does not have to be the exclusive (sole) reason for an employer’s employment action or the “but-for” (deciding) factor for the action. An employment action still is unlawful even if race, sex, or another Title VII protected characteristic was just one factor among other factors contributing to the employer’s decision or action.
[34]
Diversity, Equity and Inclusion (DEI) is a broad term that is not defined in Title VII of the Civil Rights Act of 1964 (Title VII). Title VII prohibits employment discrimination based on protected characteristics such as race and sex.
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