You Should Know About DEI-Related Discrimination at Work.”7 The EEOC and DOJ maintain that under Title VII, DEI initiatives, policies, programs or practices may be unlawful if they involve an employer, including a financial institution, or other covered entity taking an employment action motivated – in whole or in part – by an employee’s or applicant’s race, sex or other protected characteristic. What Employers Need to Know In this ever-evolving area, legal ambiguity has made it very difficult for employers to balance compliance with institutional goals related to inclusivity and equity. Moving forward, current guidance holds: ▶ Title VII applies equally to all employees, regardless of race, ethnicity, national origin or sex, and in all terms, conditions or privileges of employment. Employment decisions based on any protected characteristic may be unlawful. In addition to traditional employment decisions, such as hiring, firing, promotion and compensation, this also includes access to or exclusion from a training or leadership program (e.g., minority or female leadership development programs); a mentoring, sponsorship or networking program; or an internship or fellowship. ▶ Depending on the facts, DEI training may create a hostile work environment. Title VII prohibits workplace harassment, which may occur when an employee is subjected to unwelcome remarks or conduct based on protected characteristics. Employees who can plead or show that a training is discriminatory in content, application or context may be able to maintain a cause of action for a hostile work environment. ▶ DEI programs cannot limit, segregate, classify or exclude employees based on a protected characteristic. This can include breaking employees up into groups when administering trainings or programming if the division is based on a protected characteristic. It can also include limiting membership in employee resource groups or other affinity groups. It should be made clear that such employer-sponsored groups are open to all employees regardless of race, sex or other protected characteristic. ▶ Employers cannot excuse DEI-related considerations based on a “business necessity” or interest in “diversity,” including preferences or requests made by clients and customers. ▶ Employees who reasonably oppose DEI policies or practices are protected from retaliation under Title VII as their opposition may constitute protected activity. ▶ Unlawful discrimination exists even if a protected characteristic is “just one factor among other factors contributing to the employer’s decision or action.” Because this area is evolving, employers should stay informed and consult with experienced legal counsel to assist in navigating this uncertain territory. HUMAN RESOURCES CONT. 28 HOOSIERBANKER Woman on the Rise Award Sponsored by Nominate yourself or another woman in banking by Sept. 12. For questions, contact Evan Hoffmeyer at EHoffmeyer@indiana.bank. Celebrating a woman age 40 or younger who is making a significant impact in her industry and community, making her “one to watch.” Candidates are interwoven and involved in their communities and should achieve success independently, but thrive on sharing their vision with others and contributing to team success. This young professional welcomes change and opportunities to tackle new projects. Nominations are now open!
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