This week, the U.S. Equal Employment Opportunity Commission and the Department of Justice issued technical assistance materials on diversity, equity, and inclusion initiatives, including one document titled “What to Do if You Experience Discrimination Related to DEI at Work,” and another titled “What You Should Know About DEI-Related Discrimination at Work.”

Employers with DEI programs will want to review both documents and determine whether they need to make any adjustments to avoid legal challenges.

Meanwhile, here are seven quick (and, in my opinion, very helpful) tips from the materials:

Tip No. 1: Title VII of the Civil Rights Act of 1964 applies to all employees, male and female, "majority" and minority. One big issue before the U.S. Supreme Court right now is whether “reverse” discrimination plaintiffs have a more stringent burden of proof than plaintiffs who are women claiming sex discrimination, or members of minority groups claiming race, color, or national origin discrimination. The new materials clarify the EEOC's position that “majority group” victims do not have a more demanding burden of proof than minority group victims:

The EEOC’s position is that there is no such thing as ‘reverse’ discrimination; there is only discrimination. The EEOC applies the same standard of proof to all race discrimination claims, regardless of the victim’s race.”

Tip No. 2: Title VII protects not only employees but also “applicants, and training or apprenticeship program participants.” It may also apply to interns in certain cases. And the law applies to employment and staffing agencies, “entities which operate training programs (including on-the-job training programs),” and labor unions, in addition to employers. If one of these organizations discriminates via a DEI program, the employer may also be liable.

Tip No. 3: A DEI program may violate Title VII even if the discrimination isn't related to standard employment actions, such as hiring or firing. The following, if based on race or other protected characteristic, could also give rise to a discrimination claim:

• “Access to or exclusion from training (including training characterized as leadership development programs)”
• “Access to mentoring, sponsorship, or workplace networking/networks”
• Internship programs
• “Selection for interviews, including placement or exclusion from a candidate ‘slate’ or pool”
• “Job duties or work assignments”
• Access to affinity groups. With respect to employee groups or clubs, the EEOC says, “In the context of DEI programs, unlawful segregation can include limiting membership in workplace groups, such as Employee Resource Groups (ERG), Business Resource Groups (BRGs), or other employee affinity groups, to certain protected groups.”

With regard to training or other programs that are segregated by protected characteristic, the EEOC says,

Unlawful limiting, segregating, or classifying workers related to DEI can arise when employers separate workers into groups based on race, sex, or another protected characteristic when administering DEI or any trainings, workplace programming, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources."

No. 4: It’s not an defense that the protected characteristic was only one reason among others for the differential treatment. If the protected characteristic was a reason, then it’s unlawful discrimination.

No. 5: “Business necessity,” or client or customer preference, is not a defense to a race or color claim. (The same is true for sex, religion, or national origin, but there are limited exceptions for these categories.) There is no defense to a discrimination claim based on the employer’s desire for diversity, either.

No. 6: Diversity training can give rise to hostile work environment claims. The EEOC says that diversity training could result in a valid harassment claim if it “was discriminatory in content, application, or context.” Successful claims can be based on “evidence of how the training was discriminatory (for example, in the training’s design, content, or execution).” The EEOC does not provide specifics, but presumably this could include employer-mandated training that promoted the idea that people of a particular race are inherently racist.

No. 7: Diversity-based retaliation is also unlawful. The EEOC says, “[O]pposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII.”

As my law partner Zan Blue would say, "Now you know."