Innie or outie: no mulligans exist for DEI missteps | Opinion

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After four hours of hanging out with my golfing friend monthly, you would think I would have a firm grasp on his life. Yet whenever I get home, I typically forget the broad range of commentary that happened on the golf course (probably for the best). It is as if the golf course is our friend group’s Lumon Industries, but instead of innies we are golfies.

Yet in early March I felt a moment of “reintegration” when my wife asked about the golf outing, and I remembered talking to my fraternity brother (who works in higher education in the DEI sphere) about the uncertainty he and other employers face handling diversity, equity and inclusion. We talked about President Trump’s executive order targeting “illegal” corporate DEI efforts and him naming DEI critic Andrea Lucas as the Equal Employment Opportunity Commission’s Acting Chair. We also talked about Trump’s revocation of a federal order requiring federal contractors use affirmative action programs and how that may signal a broader crackdown on private-sector DEI programs.

Our conversations were as speculative as you can imagine and largely interrupted by thinned flop shots and snap hooks. But the good news is that I can now report back to my wife that I need to go golfing again to provide my friend an update. On March 19, the EEOC and the Department of Justice released two technical assistance documents offering guidance for employers navigating DEI compliance. And while I could simply send him this article with my takeaways, I think a round of golf is more appropriate. For those unable to join our foursome, here are the key takeaways:

Title VII applies to all

The EEOC reaffirmed that Title VII bars employment discrimination based on race, color, national origin, sex, and religion — protecting all employees, regardless of background.

“Reverse” discrimination does not exist

Title VII protections extend equally to majority and minority groups. The EEOC doesn’t impose a higher burden of proof for claims brought by majority-group employees.

There is no diversity exception

The guidance makes clear that DEI goals don’t justify race-based employment decisions. Title VII does not allow a “business necessity” or “diversity interest” defense for such actions.

Who’s covered

Title VII protections apply not only to employees and applicants, but also to interns and participants in training programs.

Possible unlawful DEI-related discrimination

These include: 1, quotas; 2, limiting membership in workplace groups, such as affinity groups; or 3, retaliating against an employee who reasonably opposed DEI training. This may constitute protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII.

And while I could go over all these points in detail — over 18 holes with my friend — I think the story is much simpler and could be conveyed during our nonexistent pre-round putting warm-up: “To stay compliant and minimize legal risk, conduct an attorney-client privileged review of your DEI programs and training materials with counsel. Ensure that hires, promotions, and compensation decisions are transparent and well-documented. Provide training to HR and hiring managers on legally sound practices aligned with your business goals, and frame diversity initiatives around workplace culture, professional growth, and inclusive, merit-based access to opportunities as part of a sustainable strategy.”

Stephen Scott is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the DJC guarantees the accuracy or completeness of any information published herein.