The U.S. Equal Employment Opportunity Commission (EEOC) recently updated its guidance on Diversity, Equity, and Inclusion (DEI)-related discrimination in the workplace by publishing its ‘What You Should Know About DEI-Related Discrimination at Work.’ This update aims to clarify how the EEOC believes DEI initiatives should be implemented to comply with Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on protected characteristics such as race and sex. Title VII protects employees, applicants, and participants in training or apprenticeship programs and applies to employers with 15 or more employees, employment agencies, training program operators, and labor organizations. 

Recent Administration changes have left many employers struggling to determine what, in the eyes of the EEOC, constitutes “illegal DEI.”  The updated guidance provides some assistance as it emphasizes that DEI initiatives, policies, programs, or practices may be unlawful if they involve employment actions motivated by an employee’s or applicant’s race, sex, or another protected characteristic. This ‘clarification’ simply reinforces the long-held understanding that Title VII’s protections apply equally to all workers, regardless of their race, sex, or other protected characteristics, including protection against so-called “reverse” discrimination.   

The update also clearly indicates where future EEOC enforcement actions will likely focus. Business decisions regarding hiring, termination, promotion, demotion, access to career and job opportunities, and training are all key areas where employers must make certain their practices are non-discriminatory in fact and in action.   

To ensure consistency in your organization’s anti-discrimination policies and procedures, consider the following: 

• Inclusive Training: Provide training and mentoring that offer all employees, regardless of background, the opportunity, skills, and experience necessary to perform well and advance to upper-level jobs. 

• Equal Access to Networks: If your organization provides networking opportunities such as Employee Resource Groups (ERG) or Business Resource Groups (BRG), you will want to make sure that employees of all backgrounds have equal access and opportunity to participate.  

• Non-Discriminatory Policies: As always, be sure to develop and enforce policies and practices that do not segregate or classify employees based on race, sex, or other protected characteristics in a way that affects their employment status or opportunities. 

By ensuring consistency in anti-discrimination practices, organizations can minimize risks and adhere to guidelines that promote inclusivity in the workplace while complying with federal anti-discrimination laws. As DEI initiatives evolve, staying informed and proactive in addressing potential legal challenges will be essential to creating a fair and harmonious work environment. 

As discussed here, on February 21, 2025, a federal judge in the District of Maryland granted a preliminary injunction blocking enforcement of various provisions of Executive Order 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity) (the EO). On March 14, 2025, the Fourth Circuit Court of Appeals issued a stay of the preliminary injunction.  

The stay means that enforcement of the EO may continue, which will require federal contractors and federal grant recipients to certify that they do not “operate any programs promoting DEI that violate any applicable federal anti-discrimination laws.” The stay also allows the U.S. government to bring False Claims Act enforcement actions against federal contractors and grant recipients that allegedly make a false certification. 

Additionally, the stay allows federal agencies to once again act to terminate all “equity-related” grants or contracts, with the caveat that grants, “based on a grantee’s speech or activities outside the scope of the funded activities” may not be terminated.  

The Court emphasized that the “certification” and “enforcement threat” provisions of the EO apply “only to conduct that violates existing federal anti-discrimination law.” With a further caution that, “[w]hat the Orders say on their face and how they are enforced are two different things” and that agency enforcement actions that go beyond the Orders’ narrow scope may well raise serious First Amendment and Due Process concerns….”  

Ongoing legal battles surrounding this and other recently issued EO’s, highlight the complexities and challenges faced by federal contractors and grant recipients in navigating DEI programs. And, while the stay issued by the Court allows enforcement of the EO to continue, it also underscores the importance for all employers to adhere to existing federal anti-discrimination laws.  

With Administration changes impacting immigration at the speed of light, employment verification has become a pressing concern for employers. Below are a few key areas to focus on to help better manage your responsibilities and potential risks: 

Consider E-Verify+: The U.S. Customs and Immigration Service, in conjunction with the Social Security Administration (the Department), offers an upgraded version of its existing E-Verify system. E-Verify+ is an enhanced online service that integrates the Form I-9 process directly into the Department’s existing E-Verify program, allowing both employers and employees to access the system to complete their respective portions of the form. The goal of E-Verify+ is reducing the administrative burden on employers and shifting the responsibility of providing accurate data to the employee. 

Review Completion and Retention Rules: Employers must complete a Form I-9 each time they hire anyone to perform labor or services in the United States in return for wages or other remuneration (i.e., anything of value given in exchange for labor or services, including food and lodging).  

Employers must retain completed Form I-9s on file for each employee on their payroll (or otherwise receiving remuneration) hired after Nov. 6, 1986.i An employee’s Form I-9 and any copies (or electronic images of documentation) must be retained for each employee for at least three years from the date of hire or one year after employment ends, whichever is later. This requirement applies even if the employee ends employment shortly after the date of hire. 

Perform an Internal Audit: As they say, the best offense is a good defense. Conducting an internal Form I-9 audit ensures compliance with regulations and lowers risk by giving the employer an opportunity to identify and correct errors. An audit will also help in avoiding potential fines or legal issues associated with government inspections and demonstrate good faith and commitment to compliance. Audits are also a great training opportunity for Human Resources personnel, highlighting areas where staff might need further training on completing and managing Form I-9s. 

Correct Errors Correctly: When correcting errors during an internal Form I-9 audit, employers should ensure changes are made properly to maintain compliance. Errors should be corrected by the person who originally completed the form, if available, using a single line strike-through, adding the correct information nearby, and initialing and dating the change. Do not backdate any information. White-out or erasers should never be used, and corrections should be made in a different color ink to distinguish them from the original entries. If an I-9 is missing, a new one should be completed and attached to the original with an explanation. For significant corrections, such as missing sections or late completions, employers should include a brief memo explaining the reason for the change. All audits should be well-documented to demonstrate good faith compliance efforts.  

Looking for additional information, tips, and best practices on preparing for ICE and DHS actions, including I-9 audits? Join Western Growers in Salinas on April 2, 2025, for our ‘Strategies for Workplace Violence & ICE Readiness’ seminar. Save the date and register here!