DEI Discrimination

Diversity, Equality and Inclusion (DEI) policies were established with the intent to reduce historical discrimination in the United States. However, regardless of the intent, these policies may be considered unlawful and detrimental due to their inherent consequences. Knowing your legal rights against DEI discrimination can help you navigate your situation and take corrective actions. Use this guide as your starting point.

What Is DEI Discrimination

DEI discrimination is defined as being discriminated against due to your race, sex or other protected characteristics. DEI policies go against the Title VII of the Civil Rights Act of 1964, which prohibits such discrimination. This means employers or organizations cannot make decisions wholly or partly due to race or sex, and there should be no difference in treatment regarding these backgrounds.

For instance, actively seeking out candidates from underrepresented groups can mean selecting employees due to their race or sex. Any “inclusion rule” that seeks a position to be 50% diverse regarding race, sex or other protected characteristics would be doing the same. The U.S. Equal Employment Opportunity Commission (EEOC) does not believe in “reverse discrimination,” which refers to discrimination against people belonging to a majority group (rather than a minority). Discrimination is the same for all, and there are no exceptions to the rule.

Even if DEI policies have been widely adopted by universities, businesses and cultural institutions, using race or sex as a basis for employment is illegal. The EEOC acting chair, Andrea Lucas, explains that regardless of the employer’s motive, there is no good or acceptable form of racial or sex discrimination.

Title VII applies to all racial, ethnic and national origin groups. It protects employees, interns, potential applicants, and training program participants. It is applicable for:

• Employers with 15 or more employees
• Employment and staffing agencies
• Organizations operating various training programs
• Labor organizations

The law also protects you from retaliation, should you decide to oppose the discrimination, file a complaint or participate in someone else’s complaint process.

How to Identify DEI Discrimination

Discrimination comes in many forms and can be direct or indirect. It can also lead to a loss of opportunity, and is naturally degrading or humiliating. DEI discrimination examples may look like:

• Classifying applicants: Employers cannot segregate applicants according to protected characteristics or limit the applications to favor a specific race or sex. Losing a job due to these preferences may constitute discrimination.
• Limiting employer-provided facilities: Employers or organizations cannot limit available company time, premises and other official or unofficial encouragement to a specific race or sex.
• Limiting memberships: Employers cannot limit memberships to Business Resource Groups (BRGs), Employee Resource Groups (ERG) and other employee affinity groups for certain protected groups.
• Excluding employees from employer-sponsored activities: Employers cannot exclude employees from training, mentoring, sponsorship and fellowship due to their race or sex.
• Using protected characteristics to identify compensation: Your race or sex cannot determine whether you’re suitable for promotion or demotion. It also cannot influence your compensation and fringe benefits.
• Receiving harassment due to protected characteristics: You shouldn’t be receiving unwelcome remarks or conduct. Plus, you cannot be harassed to the extent that it leads to a change in your terms, conditions and privileges, or to the point that the harassment is considered hostile, intimidating or abusive by any reasonable person.

Impact of DEI on Employees

People still debate whether DEI provides employees with more equal opportunities. Conflicting views can be influenced by political views. However, while a specific group may gain the upper hand in job opportunities, this will cost another group the same. Additionally, there are concerns that diversity training can portray white people as the “bad guys”. Even if DEI aims to promote equality, this can backfire and cause potential discrimination, especially to groups that feel “left out.”

What’s more, if employers prioritize providing opportunities for those favored by DEI regardless of their capabilities, this can lead to a risk of promoting unqualified candidates. Even if such candidates are qualified, they may still feel discriminated against as they will be given the perception that they were only promoted for DEI purposes. Instead of focusing on qualifications, employers can get tempted to focus on “quota”. This harms all employees regardless of their race or sex.

Having said this, DEI policies still seem to be generally accepted by the people, although the policies have decreased in popularity over the years. Here are some of the data gathered by Pew Research Center:

• 36% of Americans say DEI practices benefit black, Hispanic, Asian men and women and white women.
• 14% say DEI negatively impacts white men.
• 52% say focusing on DEI is generally good, while 21% say otherwise.
• 26% stayed neutral.

Regardless of other people’s stance on the matter, you can take action if you believe you have experienced discrimination due to DEI policies.

Steps You Can Take if You Experience DEI Discrimination

Steps differ if you’re a federal or a non-federal employee. For non-federal employees, here’s what you need to do:

1. File a charge of discrimination with the EEOC: You need to file your complaint with the EEOC before you can sue in federal court. The EEOC will investigate the charges and can file a lawsuit against your employer. However, you must file within 180 calendar days from the date of discrimination. This can be extended to 300 calendar days if the state or local government has a law prohibiting the same type of discrimination. You can submit your complaint online or in person. If you work for state and local government employers, the Department of Justice (DOJ) can file a lawsuit after the EEOC investigation.
2. Take part in the mediation program: In some instances, the EEOC may ask you and your employer to take part in a mediation program. A mediator will help you reach a voluntary settlement. You and your employer can also talk about your concerns, although mediators don’t get to decide who is right or wrong. Mediators are only there to help you solve disagreements. This process usually takes place within the first three months of filing your charge.
3. Wait for the investigation results: If the mediation process did not help, or if your complaint was not sent to mediation, the EEOC usually asks the employer for a written answer to your complaint, called a Respondent’s Position Statement. You’ll be notified through email to review this position statement. You can also respond through the EEOC Public Portal within 30 days. Sometimes, the EEOC will also visit your employer to gather documents and hold interviews. You and your employer will be notified of the investigation results. Investigations usually last about 10 months.
4. Add to your charges as necessary: You can amend a charge by adding to it newer discriminatory events that took place. In some instances, the EEOC may ask you to file a new charge instead. The employer will also be notified of these new charges.
5. File a lawsuit in Federal Court: The EEOC will provide you a Notice of Right to Sue after the conclusion of its investigation, or if the EEOC has not resolved the case within 180 days, you can request a Right to Sue letter. This will enable you to file a lawsuit in court.

Note that the time limit for filing a complaint cannot be extended due to any resolution attempts, like internal grievance procedures. For multiple discriminatory events, the deadline applies to each specific event. The EEOC will send a notice to your employer within 10 days of the filing date. If your employer refuses to cooperate with the investigation, the EEOC can issue a subpoena to obtain documents, testimonies or gain access to company facilities. The EEOC will notify you if your claim is not applicable to the laws they enforce.

For federal employees, you should contact the EEO Counselor within 45 days for any act of discrimination. You’ll be asked whether you want to participate in EEO counseling or in an alternative dispute resolution (ADR). If the dispute is still not settled within these events, you can file a formal discrimination complaint with the agency’s EEO Office within 15 days from your EEO Counselor’s notice. The agency will conduct the investigation within 180 days. After the investigation, you can ask for a hearing with an EEOC Administrative Judge or let the agency issue a decision. You need to go through this administrative complaint process before you can file a lawsuit.

Protect Yourself With the Help of Weisberg Cummings

Weisberg Cummings has racial and gender discrimination lawyers who can help you if you’ve experienced DEI discrimination in Pennsylvania. With over 40 years of combined experience, we understand racial and gender discrimination in their many forms. We are also proficient in employment law and can provide you with practical, real-world advice on how to meet your goals. Contact us today for a free consultation.