Employee Survival Guide® - EEOC Declares DEI Is Illegal Under Title VII of the 1964 Civil Rights Act

Episode Date: March 19, 2025

Comment on the Show by Sending Mark a Text Message.The Equal Employment Opportunity Commission has just declared war on corporate DEI programs, and every employee needs to understand what this means for their workplace rights. In this explosive episode of the Employee Survival Guide, employment attorney Mark delves into the EEOC's dramatic new stance that Diversity, Equity, and Inclusion initiatives are fundamentally illegal under Title VII of the 1964 Civil Rights Act.The federal government, through Acting EEOC Chair Andrea Lucas, has taken the position that DEI programs create unlawful quotas and preferences based on protected characteristics like race and sex. Despite their widespread adoption across major corporations in recent years, these initiatives now face extinction as the EEOC begins targeting employers - starting with warning letters to twenty major law firms threatening enforcement action.Mark provides crucial context about what makes DEI programs potentially discriminatory, explaining how the Supreme Court's decision abolishing affirmative action set the stage for this dramatic policy shift. You'll learn what constitutes illegal preferential treatment, why "reverse discrimination" isn't a separate legal category, and what employees should do if they believe they're experiencing discrimination related to DEI work.EEOC and Justice Department Warn Against Unlawful DEI-Related Discrimination If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.Disclaimer: For educational use only, not intended to be legal advice.

Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide where I tell you, as always, what your employer does definitely not want you to know about and a lot more. Hey, it's Mark and welcome back to another edition of the Employee Survival Guide, where as you know I always try to find stuff that's interesting and controversial and today's another example of that. Today's episode we're talking about the Equal Employment Opportunity Commission, that's the US federal agency charged with protecting

you as employees. I don't know if you know that. It's a federal agency that has been around for 60 years. Apparently this year was the anniversary, the 60th anniversary of the founding of the EEOC and also of the passage of the 1964 Civil Rights Act, a very important statute that gives you rights against your private employers. And so the EEOC has decided to take a stand. If you've been following the press about this issue, you should understand that there's

a new sheriff in town. And the old chair of the EOC obviously was left. She was a Biden appointee. The former chair is Charlotte Burroughs. And the new acting chair is a young lady who's also a And the new acting chair is a young lady who's also a young woman who's an employment lawyer by trade. And since I can find the name, I apologize. It's brand new to me. But once I do that, I'll apologize. So the EOC has taken a stance under the new chair, and the new chair is Andrea Lucas. I apologize, Andrea.

There's actually only two people on the commission today. One's a Democrat, and one is Andrea Lucas, a Republican. And the, today's episode's about DEI, diversity, equity, inclusion, as it's interpreted by the EEOC or enforced by the EEOC, or more specifically as to the rooting out or a complete utter elimination of anything related to DEI anywhere and any private sector employment possible, the federal sector employment, you already hear about that. There's zero tolerance for that

as the executive orders from Trump. Let me start out by saying this is a, when I approach this DEI subject matter, people could have opinions about my approach to it or how I'm viewing it. So I'm gonna say politically neutral, down the center aisle please, and don't find out or try to accuse me

of being one way or the other. Discrimination in America is anti-democratic in terms of the institution of the United States being a democracy. And when you have discrimination, it violates federal law, 1964 Civil Rights Act. It also violates 42 USC 1981, a Reconstruction Statute from the Civil War era designed to,

and intended to enforce or to encourage African-American slaves that time post-Civil War to earn, to contract and own land, essentially. But today we use it for discrimination cases based upon race. We also use it for reverse discrimination. Doesn't matter your race.

So back to DEI. The EOC has taken a position and on a press release, in fact, today, here's the title of it, the EOC and Justice Department Warn Against Unlawful DEI-related Discrimination. And this went out to everyone today and basically says that DEI is a broad term

that is not defined in Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination based on protected characteristics, such as race and sex, we know that. Under Title VII, the EEOC says DEI initiatives, policies and programs, or practices may be unlawful if they involve an employer or other covered entity

taking the employment action motivated in part or in whole by an employee, employees or applicants race, sex or any another protected characteristic. And the EOC goes on to say, I'm reading here, it's just in the past year, five years, the DEI policies, programs, and practices have become increasingly prevalent in many of our nation's largest and most prominent businesses,

universities, and cultural institutions. The widespread adoption of DEI, however, does not change longstanding legal prohibitions against the use of race, sex, and other protected characteristics in employment. I need you to really understand that. The widespread adoption of DEI in the general public by employers doesn't change what it is.

It's illegal. Now, here's where it gets controversial because it's political. We all know how DEI came about. And if you didn't know, here's a short scoop. There was a murder in some location of a police officer of black men named Mr. Floyd. And then there was a public outcry of that. And so corporations didn't want to be on the losing side of that situation. So they glommed on and started creating this DEI initiative.

And it went on for some time and people were challenged with their own internal and implicit biases and the like. And so you know this and you've been around, you've read through it, you've experienced it in your workplaces, I'm sure. But that didn't make it legal. Fast forward two years ago or less, the Supreme Court in the United States abolished affirmative action and said in that decision that there was zero percentage tolerance for any quota. What is DEI?

Well, DEI basically creates quotas. It creates an attempt to bring up the playing field, so to speak. This is where it gets controversial, politically speaking. Well, if you now know that Title VII of the 64th Civil Rights Act says zero tolerance as to any race specification, DEI is implicitly doing what? It's creating quotas. And it's illegal in the affirmative action setting.

It will soon be illegal in the private employment sector. Now you have the federal agency saying it's illegal because it creates quotas and you can't have any percentages of favoritism, one classification over another. So white versus black or Asian versus white or in sex versus male, female or anything or sexual orientation.

Across the board, you can't have favorites. You can't bolster one because you believe by systemic discrimination of some sort that you're trying to bolster the, maybe bringing more women up to the C-suite because you feel that there's a lesser percentage in the C-suite. So by doing that, any type of initiative

in whole or in part could be seen as discrimination against who? Well, the opposite protected category, so this would be men. So you would have basically reversed sex discrimination case in that respect. I'm currently actually dealing with a case about the file. It has 70% of the employees are female.

It's a public company and can't name names yet, but it says 70% and this is on information belief. So the issue is, we know by fact that the workplace So the issue is, we know by fact that the workplace in America is, I think it's like 57, 58% female to men. I think men are maybe the difference, maybe 53%. But you can hear the statistics there. So 70%, wow, how did you get that level of representation of women in the workplace in that particular company?

That may be a case of DEI treatment, where you're favoring one class over another. We shall see. I'm actually drafting a complaint. So DEI, from the federal perspective, by the EEOC, that regulates private employers, private meaning non-governmental, and it says it's illegal. So what are you going to do about it if you find that you have a DEI program at work?

Let's listen to what the EEOC says further about this issue. And this is now quoting the chairwoman, Andrea Lucas, quote, far too many employers defend certain types of race or sex preferences as good, provided they are motivated by business interests in diversity, equity, or inclusion. But no matter an employer's motive, there is no good or even acceptable race or sex discrimination," end quote. And then the, I believe she said, quote, in the words of Justice Clarence Thomas in his concurrence in the Students for Fair Admissions,

that's the affirmative action decision, ending affirmative action, quote, this is now quoting Justice Thomas, "'Two discriminatory wrongs can't make a right,' which is actually logically true. Lucas then went on to say, "'While the public may be confused about what rules apply to DEI, the law itself is clear.'"

And I agree with her. And this is not a political statement. It's just clear. You just can't have a preference. And she goes on to say, and there are some serious implications for some very popular types of DEI programs. These technical assistant documents,

which I'll talk about in a second, will help employees know their rights and help employers take action to avoid DEI-related discrimination, end quote. And she goes on to say the Department of Justice committed to ending illegal DEI initiatives, policies, and programs. That was the Deputy Attorney General Todd Blanch.

He goes on to say that the technical assistance document provides clear information for employees on how to act should they experience unlawful discrimination based upon DEI practices. So now you know that the federal government agency, the EOC is targeting the private workplace regarding DEI practices. You probably are not smelling a whiff of anything from your employer about DEI these days because they all retreated.

Some companies are holding out, I think Walmart is one of them, but most companies have just canceled. If you had read the Wall Street Journal this morning, you would have read a very nice story by Lauren Weber, a reporter for the journal, and she basically discussed the activities at the company Morgan Stanley.

And if you haven't read it, please read it. It goes into very disturbing facts about how the company approached DEI and then what really happened in terms of, in particular, if you were African American and what happened to you if you went to the organization. And obviously lawsuits arose after that. Now let's turn to the two documents I mentioned. These are, one was what to do if you experience discrimination related to DEI work, and the other one was what should you know about DEI related discrimination. My focus is going to be on the latter document. I'm gonna pull it up in front of me.

And the EEOC produced this, I'll put this in the show notes so you can grab the links to them. And I wanted to go through a couple of the FAQ type of questions so we address it and make clear about what's at stake here and what's not. You should understand by this juncture in the episode that DEI is illegal. Now you got to get your head around that first because we were just told for like three years

that DEI is like the way to go and it was just banded about and it was just sung from high everywhere. But today it's actually now the EOC is taking a position. It's illegal to do any related DEI practices. We all hope that they come up with something better. Diversity, you can't use the word equity. Inclusion might be problematic too, but they've now turned to a meritocracy type of argument. So decisions based upon merit, which arguably it should.

Merit has no color, gender, age, et cetera. We all know that. I mean, good old work ethic, you should be rewarded that way. The problem is in our country is that we have employers who, and this is my opinion because it matters, I'm an employment lawyer and this is what I see, we have statutes to protect people, 1964 Civil Rights Act, but what happens?

Employers still continue to violate it. Why does that happen? Because we have organizations of people who work that are very large and sometimes small that employers just allow and don't follow the rules and create, allow environments to be fostered, festering that promote discrimination. It's not going away because people have implicit bias related to one another for a variety of scales, just not because of race, it's just because the way humans are,

they basically want to, if you are a threat to someone, you're going to find any way that you can dehumanize that person based upon characteristics. And that's what leads to discrimination. I mean, this is all I do for my entire career, going on, I don't know, 28 years, I forget. But you know, the 64 Civil Rights Act is 60 years old. It's still going on.

Okay, so it's not something easy to root from our society. And so it's here and it's unfortunately it's, and it can get really disgusting. And I'm just, you know, over coding this. I mean, it can get really disturbing what these cases are about. And I do my best to bring you these stories. You'll see them in individual podcasts where I have an AI discussion

about a particular case in question, the result result and sort of expose you to these fact patterns because I need you to see the level of behavior people go to against one another at work. It's really disturbing. But back to the issue here. The EEOC wants you to know what DEI and related discrimination looks like. And so here's a several questions they are,

you know, they have put together, and I'll put it in the show notes as I told you. First one, let's just try these out. If I believe I've been discriminated against related to a DEI at work, can I file a lawsuit in federal court alleging a violation of Title VII without taking any other further steps?

Well, the answer is no, and you have to file your administrative exhaustion, that's through the EEOC, and that's a requirement. I, myself, have to do it for every single case for each client that I have. And the state has the same requirement for that. The second question, if you believe you would experience discrimination related to DEI work,

what federal government entity can help you? Well, duh, the EEOC, you know, that's the agency. And can I just start from something here? The EEOC, in my experience, now I had 28 years of doing this, I had more experience before that, before I became a lawyer. So I've actually been reviewing the EEOC's activities for, let's call it 45 years. Okay? Because in college college I used to research the EOC and whatnot. I actually went down there one time in DC and met a chairperson because I was curious. So, but in reality the EOC,

I just need to know some specifics. They claim, and this was on January 17th, 2025, this is their annual performance in general counsel's reports for physical year 2024. They claim that they received roughly 88,000 new charges of discrimination in 24, reflecting a 9% increase over the prior year. But the reason why I'm getting to this fact for a second is because the EEOC tends to,

well, each time I have a settlement that doesn't go to suit, the EEOC wants to know the settlement of each client. And so I say, well, ask the defendant. But what they're trying to do, and they come up with this very large, grandiose number, I'm trying to locate it for a second, they said in physical 2024, they had $700 million recovered

for victims of discrimination. That encompasses all the cases that I and other employment lawyers are engaging in, in addition to the EOC doing their own cases. They do their own cases, but let me tell you something. I've never had an EOC agency interact in any of my cases. Period. End of story. I had one for-cost grant from the EOC. It must have been about more than 25 years ago. I remember the case. I remember the investigator. And that was the only one I ever received. Why is that?

Because the EOC doesn't get involved with practitioners in their cases, but they want to know what your settlement value was. And it's like they did something. They want to bounce off the work that I did, but they didn't do squat. So my complaint about the EOC is don't report these settlements about employees

because private practitioners like myself created the result. Don't claim that. And they do it all the time and I can't stand it. So I'm gonna call you out to EOC, stop doing that because you're not helping us by any resource you provide, period and a story. And you know me,

I don't file my EOC cases and then pursue it in the agencies. I've stopped doing that, because I don't believe the agency is worth a darn penny of my client's time and money in there at all. And anything that's resulting is because I'm creating that. Now, that's my spiel on the issue about the EOC.

I think that they should spend more money in the EOC, give it a larger budget, and to police it, but setting forth guidelines, give me a yawn, like a yawn, like a meh. It's just, I've read these guidelines, I'm like, the courts don't follow them, and we now know the Supreme Court in the United States says,

we're not gonna give administrative deference, no more Chevron deference to these agencies. So what good use is the EOC guidance? It's not. If they were to do something, and Chairman Lucas, if you are listening to this, God, I actually, if I had, maybe I'll send her an email. I could do that. And I'll send her an email, I could do that.

And I'll send her the show note link and she can read it or listen to herself. But for once, if Trump in his rhetoric wants to help employees who voted for him, because that's what happened, why don't you give employees something they can dig into? Instead of, you know, politic or whatever, you know, choose to, you know,

get rid of so-called woke DEI practices, which I'm talking about today. That's how they label it. But, you know, the EOC has been meh their entire time. You know, they really don't help stop the problem of discrimination. You know, and then they write about it, but it's a lot of bureaucracy.

It's like, give me a break. They don't do enough to help the everyday employee who doesn't have any contact with this agency. I mean, you gotta hire an attorney, or you can file your charge, but you know, the EOC is not the advocate of employees the way that they think that they are, okay? I know that they file their individual lawsuits

and they get companies to roll over, but I do that too. So I actually track my settlements. I mean, what's the difference? So they gotta come up with a different game plan of how they administer their services. And our tax dollars, I mean, our tax dollars, I don't even know the budget offhand, it's gotta be insane the amount of millions

of dollars they have. But you don't know this, but they don't have, they don't have any money to spend on mediators to hire them, they don't have money to have large law firm internally within the agency to prosecute these cases. It's kind of a joke, I'm sorry. And so I'm sorry. And so I'm lashing out at the EOC

because I've watched it for too long and under both administrations, do something with it. Do something novel, out of the box thinking, to be effective, to stop the problems, to prevent employers. If you really wanna carry a large gun on the EOC level, this is an analogy, you know, show it, you know, take a stance instead of, you know, guidance,

which has no deferential treatment in the courts. And I've never actually heard a case that I've had where the EOC guidance was actually dispositive in the court cases quoted by the judge. I mean, so, all right, I digress, but you heard it. It's just, I'm exhausted and frustrated with it. I have been for a long time. So moving on to the questions regarding what you can do

as an employee if you see DEI work in your workplace. Let me just find, so do Title VII's protections only apply to individuals who are part of a quote unquote minority group, such as a racial or ethnic minority or workers with non-American national origins or diverse employees or historically underrepresented groups, women or some other subset of individuals? And the answer that the EOC provides is no,

Title VII's protections apply equally to all workers. Doesn't that feel good? I mean, it's like, that's democratic. Because that's what Title VII does. It didn't say anything about quotas. And it pissed me off when the DEI initiative came into being. I'm like, that's discriminatory, but God forbid I'd be canceled if I said that.

Okay, well now we understand it's illegal. Not just because a federal agency said it, it was always illegal. It's just, I wish people would get more information about this instead of latching on to some type of soundbite and saying DEI, this and that. It was inherently discriminatory. And I took efforts to bring individual settlement cases

against private employers And I took efforts to bring individual settlement cases against private employers that never reached the light of day alleging discrimination based upon DEI and did so in some cases where it was filed publicly in a federal court. So it was always illegal. Let's see, the next thing is in that same category, the EOC does not require higher showing of proof for so-called quote, reverse discrimination claims.

The EOC's position is that there is no such thing as a reverse discrimination claim, which is true, only discrimination. So we just label it reverse because white, black, so typically in our country, historically, it was race discrimination was related to being African American. Well, there are cases involving people who are non-African American who bring claims.

We have a multi-diverse population. There are Indians, there are Indians of American heritage, there are Slavic countries represented here, there are Germans, Irish, et cetera, and there are also Caucasian individuals. And so you can have a claim of discrimination according to any race. So reverse discrimination is just what we use

to signify there is no meaning to it. And there is no meaning to it. And there is no higher standard for that as well. And there's a court case pending in the Supreme Court of the United States. And that case basically says, should a reverse claim of discrimination have a higher burden than one of a minority treatment? And the answer is kind of simple.

And the Supreme Court itself, during oral argument, was like the question presented, they were wondering, it was kind of a silly question and the question presented, no, there's no different standard for, it's the same standard for everyone in terms of who brings a claim of race discrimination. So that's the issue in terms of the Supreme Court.

It'll come out, and I believe, I think they said June. Let's see, any other additional questions that I can see from, that are kind of popping up. This is the last one I'll deal with. When is DEI Initiative Policy Program or Practice unlawful under Title VII? And this goes to the issue of, you know. Let's take a quick break.

It's Mark, and we have a new product for you. It's called the Employee Survival Guide or Employeesurvival.com. And it's a site that you can obtain PDF products that I created myself. I was spending too many hours, way too many researching and writing about it. For example, the performance improvement plan or beating them. And the second one about negotiating severance negotiation agreements, two of the most important topics that we see in terms of the web traffic and podcast traffic we have. So check out Employeesurvival.com and see if this can try to help you and you don't

need an attorney to use it. Thank you. The issue of hiring, firing, promotions, demotions, compensation, fringe benefits, access to trainings, mentoring, sponsorships, workplace networking, all this good stuff that happens in its factual minutiae in your workplace, if anything is preferential in any way,

you have discrimination. Just call it out. in any way, you have discrimination. Just call it out. And so the EEOC is taking a strong position on that, and they're gonna label it as unlawful discrimination segregation. And they're gonna say that you're not entitled to do that, and they're gonna, maybe the EEOC's gonna actually

bring cases against, I don't think they have the resources, I think this is just a lot of shouting happening by the EEOC, but with zero follow through. I mean, zero. Because they didn't have the resources once, and now we have this, you know, draining of the swamp approach happening now with Trump. Where are the resources gonna come?

You've fired everybody. So, you know, there's no, I don't even know if this is a quorum at the EEOC commission level basis. There's only two left. They need to appoint more. So there's no resources here to do what's to be done here. I think this is more of just grabbing some headlines, maybe at this stage by the EEOC, nothing more.

But let's see, is there anything else here we can add here to give you an idea? If you're seeing Title VII discrimination claims based upon DEI, you gotta confront it. You might say to yourself you're gonna risk your job, but I wanna say that you're gonna be well supported if you confront it these days. And here's why. Something happened, I believe a day ago.

The EEOC sent a letter out, and you can actually read it in the paper. I don't know if the Times is covering this, the Wall Street Journal definitely did cover it. The EEOC Commissioner Lucas sent out a letter to something like 20 large law firms in the country. And it said, and these are now law firms

that are private places of employment. People work there, lawyers and their administrative staff. And the pronouncement by the EOC said, if you engage in anything DEI related, we're coming after you. And they mean it. There's another law firm, DLA, I can't remember the name of it,

I'm just gonna think of it DLA Piper, but I don't think it's the name of it, where the Trump administration specifically attacked the law firm and they're just cratering. This is a very large law firm, they're losing business and clients because the federal government refuses to do any work-related activities

with this law firm and their clients. So the letter came out to the various group of large workplaces, Paul Hastings was one of them, a very large prominent defense employment law firm, and the federal government, in essence, through the EEOC said, if you have any DEI practices, they're illegal and we're coming after you. And it just, obviously it's a political agenda,

but it's also part of the initiative to stop DEI. And eventually they'll start to send letters to organizations beyond law firms. But clearly, as you can hear, there is a DEI front that's being managed by the federal government and through the EOC to eradicate DEI and anything related to it. Obviously, it's an anti-wokeism type of behavior that's,

but in all sincerity, this is a federal government agency designed to protect both political parties and their employees. So this is a specifically down the middle of the aisle issue that cannot be politicized. And I wanna make one important point before I close. No one has a right to capture as a group subset for support employees.

You can see that parties, both left and right, try to politicize employees. Now, if you are Democrat, you generally will see union activity, so the Democrats think they have a hold on unions, and that's just part of their support group. And then Republicans, they will say, well, we're pro-business and so we have them. And so there's accusations of all the people who are at the inauguration in 2025 for Trump, that's big corporate government influence, et cetera. You have to ignore that stuff. The EEOC or the federal government itself

related to employees, it's neither party. It's because of one very simple thing. If a little civics lesson for the day, I'm a political science major by background, but here it is. I mean, don't get swayed by any other type of influence. 1964 Civil Rights Act, 60 years to the date of this passage. Passed in the wake of political turmoil back in 1964.

Congress, your elected representatives back then passed this statute. It said zero information about quotas, zero. It just simply said, shall not discriminate based upon any protected category. Period, end of story. It didn't say anything more, and it founded the EEOC as a federal agency

designed to enforce that statute. It said nothing about quotas. So if we're to have the takeaway from this, it's not political, it can't be politicized if we would hope that the agency that was charged here to protect us as employees, the EOC would finally stand up and do the right goddamn thing and protect employees instead of

pass the buck because that's all I've seen them do. As a practitioner, I'm gonna tell you the EOC is just worthless, I check a box, I'm gonna tell you the EOC is just worthless. I check a box, I move on. That's ridiculous. So if they come up with something of a novel approach to this, let's hats off to them.

Make sure it's not the austere elitism from major universities. Just keep it simple. Make sure people understand it, enforce it with vigor, and create deterrence. Wow, I just think I just whiffed that off the top of my head because maybe that's it. Oh, they're gonna say, well,

that's what we're already doing. It's not working. So they need to do something more. Have more resources, more lawyers hired by the federal government to go after bad offenders, okay, on both sides of the aisle at these companies who allow this to happen. Maybe help out and give resources to join cases with employee advocates like the National Employment Lawyers Association,

which I'm a part of, and maybe they sign on to cases with us. That'd be a wonderful approach to really piss off employers that we're going after. Maybe they'll get the message, Mr. Employer, or that you shouldn't do these things, or maybe better manage your employees instead of pipping them out

because that's what you all know how to do. I mean, it's just ridiculous. So maybe EEOC signing onto cases and filing appearances in federal court along with me, that would really help. It would send a message to employers. It would help settle cases, and then you can come to the settlement conference with me,

and we can participate in front of a magistrate judge and try to settle a case. That would help. More money resourced in the right direction instead of creating guidance. I don't need guidance. I need action. You need action.

It's stopped this insanity that the EOC has been perpetuating for 60 years. All right, I'm exhausted. This is exhausting shit that I can't stand. But if you're here for me, it's because this is really happening out there. Granted, you know, the EOC is trying to take a new position. Great. Love it. But the follow through, I want to see it. Show me. Actions, not your stupid words. Actions. Okay? So there you have it, DEI is illegal, always was, always will be.

They'll come up with something new in the future according to the statute, but there you have it. So yeah, it's tiring, but this is what I find interesting and fascinating to bring to your attention. And now you're educated and it's straight down the middle, not political, just the facts, ma'am, that's what it is, and that's all I ever promised I would do for you. Have a great day.

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