EEO, DEI, and Affirmative Action. What's the difference?

 Trump’s Executive Orders specifically addressing and dismantling Diversity, Equity, and Inclusion (DEI) initiatives use language that conflates and confuses the concepts of Equal Employment Opportunity EEO), DEI, and Affirmative Action. Here's a quick, broad overview.

Equal Employment Opportunity and anti-discrimination employment laws protect employees and applicants from adverse employment actions – like denial of employment or a promotion, being disciplined or terminated, being harassed or retaliated against, or being otherwise discriminated against in the terms or conditions of employment, because of the employees’ status as a member of a protected group. The EEOC is the federal agency tasked with enforcing laws that protect workers against discrimination based on race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. State laws can provide additional, but not less, protection.

Affirmative Action Programs or Plans are (were) actual specific, written, detailed, formal,  plans that met complex, specific legal criteria  and allow(ed) an employer to consider race, gender, or national origin  “[t]o overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity.” 29 C.F.R. §1608.1(c).  It required an employer analysis showing past employment practices that limited the opportunities of historically excluded groups, and a comparison of their workforce and the appropriate labor pool. Plans had to be narrowly tailored to correct the practice, and avoid restrictions on non-protected groups.

DEI  initiatives generally address workplace policies and culture, and seek to create a sense of belonging for all employees in an organization. Attracting and retaining a workforce with diverse perspectives and experiences is often part of a DEI strategy.  With respect to hiring practices, DEI programs often attempt to combat unconscious affinity bias, revise job descriptions, and find new strategies to look for qualified candidates in an expanded applicant pool. DEI programs and policies may not, however, use illegal preferential practices like quotas, or make employment decisions based on demographic criteria.

The Executive Orders terminating DEI initiatives in the federal government do not prohibit them in the private sector. They do, however, threaten investigations and enforcement actions against non-governmental employers with “illegal DEI” policies and practices that use discriminatory preferences or otherwise violate federal anti-discrimination laws.

Now is the time for employers to review their practices and policies to ensure compliance with all state and federal non-discrimination laws. Now is also the time for employers to ensure that their workplace culture is respectful, inclusive, and physically and psychologically safe for their employees.

Please reach out to Malloy & Sullivan for help clarifying employers' rights and responsibilities, or for other guidence or assistance navigating this rapidly evolving legal landscape.