Title VII Refresher: What DOJ and EEOC Priorities Mean for You

Compliance with Title VII of the Civil Rights Act of 1964 is more important now than ever, as equal employment opportunity efforts are being scrutinized more closely following President Donald Trump’s diversity, equity, and inclusion (DEI) executive orders. Company concerns have also been heightened by a Feb. 5 U.S. Department of Justice (DOJ) memo considering criminal investigations of illegal programs and new Equal Employment Opportunity Commission (EEOC) enforcement priorities.

In the meantime, a federal district court judge in Maryland temporarily blocked enforcement of several challenged provisions of the executive orders while a lawsuit — contending that their language is vague and overbroad — plays out in court. But the 4th U.S. Circuit Court of Appeals subsequently lifted the injunction while the case is litigated.

Title VII prohibits discrimination based on race, color, national origin, sex (including sexual orientation and gender identity or expression), and religion. 

Title VII applies to:

• Employers with 15 or more employees, each working 20 or more weeks in the current or preceding calendar year.
• State and local governments.
• Employment agencies.
• Labor unions.
• U.S. citizens employed by U.S.-owned or -controlled companies in foreign countries.

“DEI programs, while well-intentioned, can sometimes inadvertently create issues if they are not carefully designed and implemented,” said Sarah Goodman, an attorney with Offit Kurman in Philadelphia. 

Here’s what may be prohibited and allowed as employers strive to comply with both Title VII and government enforcement initiatives.

Criminal Investigations Encouraged

“The news that Attorney General Pam Bondi has prepared a memo indicating that the DOJ will target private-sector DEI initiatives for potential criminal investigation reinforces my position that companies that don’t take this issue seriously are whistling past the graveyard,” said Aaron Goldstein, an attorney with Dorsey & Whitney in Seattle. 

Employers should be ready for government investigations into hiring, promotion, and other workplace decisions if they are based on protected characteristics such as race or gender, Goldstein noted.

Even aspirational goals — such as, “We commit to increasing the number of women and people of color in leadership,” — will likely come under government scrutiny. Employers need to be able to defend their actions in light of Title VII’s prohibition of discrimination on the basis of protected class status, which includes discrimination against white and male employees and candidates, he added.  

“Employers need to audit not just their policies but their internal communications over the last several years, and they should do so now so they are prepared — not just for investigations by federal agencies, but for the private lawsuits that will be inspired by the stance that the Trump administration is taking on DEI,” Goldstein said.

EEOC Priorities

The EEOC has made it clear that its enforcement priorities are shifting.  
“My priorities will include rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work; protecting workers from religious bias and harassment, including antisemitism; and remedying other areas of recent under-enforcement,” stated EEOC Acting Chair Andrea Lucas on Jan. 21.

Prohibited Actions

Here are examples of actions prohibited by Title VII, according to Goodman:

• Quota systems. Setting specific hiring or promotion quotas based on race or sex is a direct violation of Title VII. Even if the intention is to address historical underrepresentation, quotas are illegal. Title VII aims to create a level playing field, not guarantee outcomes based on protected characteristics. Example of a prohibited quota: “We need to hire five Black engineers this quarter to meet our diversity goals.”
• Preferential treatment based on protected characteristics. Giving preferential treatment to applicants or employees based solely on their race, sex, or other protected characteristic, even if it’s framed as affirmative action, can lead to reverse discrimination claims. An example of prohibited preferential treatment: “We’re only considering female candidates for this leadership role to improve gender balance.”
• Exclusionary practices. Programs that exclude certain demographic groups from participation can also violate Title VII. An example of a prohibited exclusionary practice could be having a mentorship program specifically for women in science, technology, engineering, and math that excludes qualified male employees.
• Stereotyping and assumptions. Inclusion and diversity (I&D) training that relies on harmful stereotypes about specific groups, even if it’s presented as “unconscious bias” training, can create a hostile work environment and lead to discrimination. An example of prohibited stereotyping could be training that suggests all members of a particular racial group share the same work ethic or communication style.
• Adverse impact. Even if a policy or practice seems neutral on its face, it can still violate Title VII if it has a disproportionately negative impact on a protected group and is not job-related and consistent with business necessity. An example of prohibited adverse impact could be a physical fitness test that disproportionately screens out female applicants for a physically demanding role if that level of fitness isn’t truly essential to the job. 

The DOJ said in a separate Feb. 5 memo on “Eliminating Internal Discriminatory Practices” that updated guidance should narrow the use of “disparate impact” theories that might require race- or sex-based preferences. The DOJ also called for guidance emphasizing that statistical disparities alone do not automatically constitute unlawful discrimination.

Best Practices

“The key is to focus on creating equal opportunity and a level playing field, rather than guaranteeing specific outcomes based on protected characteristics,” Goodman said. 

She recommended the following best practices:

• Focus on outreach and recruitment. Implement strategies to attract a diverse pool of qualified applicants. This could include partnering with organizations that serve underrepresented communities, advertising in a variety of publications, and attending career fairs at universities with diverse student populations.
• Use skills-based assessments. Rely on objective, job-related criteria for hiring and promotion decisions. Focus on skills, experience, and qualifications, rather than subjective assessments that can be influenced by bias.
• Rethink mentorship and sponsorship programs. Offer mentorship and sponsorship programs that are open to all employees but that provide targeted support and development opportunities to individuals from underrepresented groups. Eligibility should be based on objective criteria, not protected characteristics.
• Offer diversity training that emphasizes inclusion. Instead of focusing solely on “unconscious bias,” opt for training that promotes inclusive leadership, respectful communication, and understanding of different perspectives. Avoid perpetuating stereotypes. Training should emphasize the value of I&D and how it benefits the organization.
•  Optimize data collection and analysis. Track diversity metrics related to hiring, promotion, and retention. Analyze this data to identify any potential barriers to equal opportunity and develop strategies to address them. Be careful not to use this information to implement quotas or preferential treatment. The data should be used to ensure fairness and identify areas for improvement.
• Conduct regular reviews and evaluations. Regularly audit I&D programs to ensure they are effective and compliant with Title VII. Seek legal counsel to review programs and policies to ensure they are legally sound.

BEAM Framework

Recommendations

Policies or statements that tout the benefits of a diverse workforce are “less risky” than ones explicitly stating a preference for employees of one group over another, Goldstein said. However, he added that employers need to be prepared to defend any statements on the benefits of diversity with clear policies and practices showing they comply with Title VII.

Employers should make their “DEI buzzwords more specific,” Goldstein recommended. For example, employers should commit to removing the barriers to success for all employees rather than adopting broad, general statements of commitment to I&D without stating what specific actions will be taken. 

Employers should also be clear they are not making employment decisions on the basis of traits protected by Title VII.

“The challenge employers face going forward will be how to balance DEI efforts while ensuring that such programs are beneficial for all employees and are not perceived as exclusionary or providing unfair benefits to one particular group,” said Chris Duke, an attorney with Akerman in West Palm Beach, Fla. “Employers need to be cautious and thoughtful in their approach and not be merely reactionary.”

HR should carefully and consistently review applicants’ objective qualifications and ensure all employment decisions are merit-based, noted Brooke Iley, an attorney with Blank Rome in Washington, D.C.