Could Your DEI Training Create a Hostile Work Environment?
Employment lawyers and HR professionals who provide workplace training may worry whether their Diversity, Equity and Inclusion (DEI) training is sufficiently engaging or effective. The Equal Employment Opportunity Commission (EEOC) recently highlighted another question for organizations to consider: Could your DEI training lead to a hostile work environment claim?
It is no secret that DEI is a major focus of the Trump administration, with multiple executive orders having been issued by the White House targeting DEI efforts. Recently, the EEOC weighed in with a guidance document entitled “What You Should Know About DEI-Related Discrimination at Work.” The guidance follows the earlier announcement in a press release by new EEOC Acting Chair Andrea Lucas that her “[p]riorities will include rooting out unlawful DEI-motivated race and sex discrimination.”
Neither Title VII nor the EEOC defines “DEI,” but the guidance states that “DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.” In a series of questions and answers, the EEOC advises workers on what they should do if they believe they’ve experienced DEI-related discrimination and when a DEI program may run afoul of federal anti-discrimination law. According to the EEOC: “[u]nder Title VII, an employer initiative, policy, program, or practice may be unlawful if it involves an employer or other covered entity taking an employment action motivated—in whole or in part—by race, sex, or another protected characteristic.” Employers cannot excuse DEI-related considerations of protected characteristics in employment decisions by arguing “[t]hat the protected characteristic was not the sole or deciding factor,” or by pointing to a general company focus on diversity or the preferences of clients or customers, the EEOC says.
Regarding DEI training, the EEOC contends that in some circumstances, “[a]n employee may be able to plausibly allege or prove that a diversity or other DEI-related training created a hostile work environment by pleading or showing that the training was discriminatory in content, application, or context.” Similarly, the guidance notes that Title VII protects employees who oppose “unlawful policies or practices” from retaliation, and states that “opposition 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.”
Employee resource groups also come under scrutiny in the guidance, with the EEOC underscoring Title VII’s prohibition on “limiting, segregating, or classifying employees or applicants based on race, sex, or other protected characteristics” with respect to employment opportunities, including company-sponsored employee activities. For employee resource groups or similar affinity groups, “unlawful segregation can include limiting membership” based on protected characteristics, regardless of whether separate groups receive equal resources.
What are the key takeaways here for employers? As always, ensure that all employment decisions are made based on legitimate job-related factors and are not motivated in any way by protected characteristics. Engage in a thorough and careful review of any DEI-related policies, programs or trainings to ensure that they meet the standards described in the EEOC guidance. Experienced employment counsel may be helpful in this review process. Take seriously any employee complaints or concerns regarding DEI issues, understanding the EEOC’s heightened enforcement focus on the topic.
For employers interested in a deeper dive into this issue, please consider joining Parsons’ employment attorneys and Salt Lake SHRM next week at our 37th Annual Employment Law Symposium on April 8, 2025, at the Grand America Hotel. Parsons’ attorneys Mark Tolman and Elena Vetter will present a breakout session entitled One Unlikely Rise, One Potential Demise: The Realities of Reverse Discrimination Claims and DE&I Initiatives in 2025. Find more information and register here.
Federal Appeals Court Decision in ADA Case Clarifies Employers’ Accommodation Obligations
A recent opinion by the Second Circuit Court of Appeals sheds light on when an employer must provide a reasonable accommodation to an employee with a disability. In Tudor v. Whitehall Central School District, the employer school district argued that the Americans with Disabilities Act (ADA) did not require a reasonable accommodation if the employee was able to perform her essential job functions without one. The employee at issue Angel Tudor was a school teacher with a long history of post-traumatic stress disorder (PTSD) and anxiety that allegedly arose from sexual harassment and assault at a former workplace. Tudor asserted that her disability caused problems with neurological function, a stutter, severe nightmares and impaired ability to perform daily tasks. She claimed that the workplace was a trigger for her symptoms and had sought and received an accommodation allowing her to leave the school’s campus during her prep periods, twice a day, once in the morning for 15 minutes and once in the afternoon for 15 minutes. Tudor would use this off-campus time to collect herself and manage her symptoms.
After a change in school administration, teachers were prohibited from leaving campus during prep periods. Tudor did so anyway and was disciplined for insubordination. After a period of FMLA leave, the school allowed Tudor one morning break off-campus and an additional break in the afternoon—provided that a librarian could cover her absence. Eventually, Tudor’s schedule changed to include a morning prep period and an afternoon study hall, but no other employee was available to cover her afternoon study hall during her 15-minute break away from school. Tudor took the breaks anyway but said that knowing she was violating school policy worsened her anxiety. She brought suit against the school district under the ADA for failure to accommodate her disability.
During the discovery phase of the case, Tudor admitted that she was able to perform the essential functions of her job regardless of whether she received an accommodation, although “under great distress and harm.” Her employer filed a motion for summary judgment, arguing that Tudor’s ability to do her job without accommodation was fatal to her failure to accommodate claim. The district court agreed and granted the school district’s motion.
On appeal, the Second Circuit disagreed, holding: “A straightforward reading of the ADA confirms that an employee may qualify for a reasonable accommodation even if she can perform the essential functions of her job without the accommodation. Ability to perform the essential functions of the job is relevant to a failure-to-accommodate claim, but it is not dispositive.” The court noted that other circuit courts had arrived at the same conclusion (including the Tenth Circuit, which has jurisdiction over Utah). The case now heads back to the district court for further proceedings, where the employer may assert other defenses, including whether the accommodation Tudor sought was reasonable and whether it caused undue hardship.
As this case illustrates, navigating ADA accommodation issues can be challenging. Employment counsel can help. We now arrive at another shameless plug for Parsons’ aforementioned 37th Annual Employment Law Symposium, where our colleagues Liz Mellem and Susan Motschiedler will present The Next Right Thing: Choosing Your Path Through the ADA Mine Field. We look forward to seeing you there.
Employer Settles Utah Sexual Harassment Lawsuit by EEOC for $400,000
On March 24, 2025, the EEOC announced the settlement of a lawsuit brought by the agency in the federal district court in Utah. The agency filed suit against a company providing janitorial services to hospitals, and alleged that a male employee repeatedly sexually harassed female housekeepers with sexual comments and attempts to kiss, touch and grab the workers. According to the EEOC, the company failed to stop the unwelcome conduct for more than a year, despite receiving multiple complaints from the affected housekeepers. Adding to the problem, the employer allegedly retaliated against some of the victims with unfavorable work assignments and termination.
After the EEOC filed suit, the employer agreed to resolve the case by paying $400,000, reinstating certain employees, providing letters of apology, training its workforce regarding harassment, reviewing and revising its policies and reporting to EEOC regarding these subjects. The EEOC’s Phoenix District director commented on the settlement, saying “[s]exual harassment remains a prevalent problem in today’s workplace, especially for workers like housekeepers, who may work in isolated environments. Employers commit a second violation of Title VII when they retaliate against employees who complain about the sexual harassment.” She reports that more than half of EEOC charges assert retaliation.
The case is yet another reminder—this one close to home—that how an employer responds to an incident of workplace harassment is critical both practically and legally. An effective response prevents any further incidents of harassment, avoids retaliation and ultimately helps to limit the employer’s liability. Of course, the first step is typically an investigation of the complaint, which must be handled carefully. Readers, you already know where this is headed. At Parsons’ 37th Annual Employment Law Symposium, our attorneys Sean Monson and Liz Mellem will be covering workplace investigations in their presentation, Winning the Case Before it Starts: Investigations, Documents and Lawyers. We hope to see you next week.
