EEOC: Employers’ Training Can Create a Hostile Work Environment

For years, employers have held programs meant to reduce bias, hostility, and liability, but now, according to recent U.S. Equal Employment Opportunity Commission (EEOC) technical assistance, those programs could be the basis of a hostile work environment claim. 

Employers can still have inclusion and diversity training but need to ensure it promotes the mission of Title VII of the Civil Rights Act of 1964 — namely, equality for all, said Devon Mills, an attorney with Michelman & Robinson in Los Angeles.

When designing training, “well-intended content designed to promote inclusivity and educate on historical injustice can become a legal liability if it’s perceived as stereotyping, shaming, or alienating employees based on race, sex, or other protected characteristics,” he said.

While some believe the EEOC’s position has the potential to open the door to a new category of “reverse discrimination” Title VII claims from employees who feel compelled to attend sessions and later allege that the training created a hostile or intimidating workplace environment, the EEOC has taken the position that “there is no such thing as ‘reverse’ discrimination; there is only discrimination.”

Mills said, however, that “this new EEOC guidance could open the floodgates.”

He added, though, that the statute of limitations to file a charge with the EEOC is 180 days — or 300 days in “deferral states” with fair employment practice agencies — which he said should limit exposure for older trainings.

That said, Mills expressed that employers should immediately audit past training materials for potentially problematic language or attendance and ensure current training vendors are updated on the EEOC’s new stance.

“All training opportunities — internal and external — should be made available to all eligible employees without regard to protected characteristics,” said Alyesha Asghar, an attorney with Littler in Seattle. 

Coordination with State Requirements

Some state training requirements arguably conflict with federal policy under the Trump administration. 

In response to Executive Order 14168, Acting EEOC Chair Andrea Lucas announced that one of her priorities — for compliance, investigations, and litigation — is “to defend the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.” 

An employer nonetheless must train on nondiscrimination obligations as to gender identity harassment in California, said Nonnie Shivers, an attorney with Ogletree Deakins in Phoenix. The California Civil Rights Division provides in a fact sheet that if bathrooms, showers, and locker rooms are sex-segregated, employees in the state can choose the one that is most appropriate for them.

Attempting to harmonize these laws will likely be resolved through litigation in the future, Shivers predicted.

“61% of HR professionals said that the recent executive orders would weaken DEI [diversity, equity, and inclusion] programs, while 14% said that the executive orders mark the end of DEI efforts,” according to a SHRM March Current Events Pulse Survey. “Over one in five (22%) said there would be little to no impact, and 3% anticipate a strengthening effect.”

Some state requirements are in line with the Trump administration’s policies. 

There is nothing inherently wrong with anti-harassment compliance-based training, nor has the Trump administration indicated there would be, Asghar said. “If a state mandates anti-harassment training — and not all do — an employer should comply with those obligations.”

But when providing anti-harassment training, employers should avoid giving examples in which all the majority group members are cast in the role of “villains” while all the minority group members are cast in the role of “victims,” cautioned Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City.

EEO Compliance

Members of majority communities are just as protected by Title VII as those from historically minority communities, Asghar noted.

An employer should ensure all aspects of employment adhere to the law’s equal employment opportunity (EEO) obligations, she said. These include bonus structures, candidate slate policies, internships, fellowships, key performance indicators, retention programs, scholarships, succession planning, and training.

It’s unlawful to have diverse slate requirements as to who will be interviewed when race and sex are factors in making such a determination, Segal said. And it’s unlawful to consider race or sex in decision-making, even if race or sex is only one factor and “even if the goal is to increase diversity,” he added.

Avoid preferences or exclusions based on race, sex, or other Title VII characteristics in employment decisions, such as hiring and promoting, he recommended.

What Practices Remain Lawful? 

Many practices probably remain lawful, Segal said. These include: 

• Employee resource groups (ERGs) focusing on sex, race, or other Title VII characteristics so long as the ERG is open to all by policy and practice and there is no segmentation based on race, sex, etc., within the ERG.
• Valuing differences in perspectives, experiences, backgrounds, and skills in decision-making so long as such valuing of these factors is not a proxy to consider race, sex, etc., in employment decisions.
• Casting a wide net in recruiting so that the applicant pool is as strong as possible so long as the employer doesn’t require a diverse slate for interviewing or consider race, sex, etc., in making the decision.
• Recognizing the contributions of a group (for example, Black employees or women), so long as the program is open to all and does not include positive stereotyping about those in the group or negative stereotyping about those outside the group. 

“Employers should err on the side of being inclusionary, not exclusionary,” Mills said. 

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