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Arkansas Law
The clock is ticking for public employers in Arkansas to ensure that their diversity-related programs and policies comply with Act 116—which prohibits “preferential treatment” on the basis of race, sex, color, ethnicity, or national origin. This new state law goes into effect on August 5, 2025.
EEOC Guidance
The Equal Employment Opportunity Commission (EEOC) issued earlier this year guidance detailing the agency’s view on discrimination related to diversity, equity, and inclusion (DEI) programs and practices in the workplace: What You Should Know About DEI-Related Discrimination at Work and What To Do If You Experience Discrimination Related to DEI at Work. The guidance provides some clarity to those employers struggling to understand what constitutes “illegal DEI” under President Donald Trump’s DEI-focused executive orders, which are being challenged in court.
The EEOC guidance explains that any “employment action motivated—in whole or in part—by an employee’s race, sex, or another protected characteristic” may be unlawful under Title VII and provides the following examples of unlawful DEI-related workplace discrimination:
- The use of quotas and other “balancing” efforts.
- Disparate treatment in various aspects of employment, including the selection of interviewees and hiring/firing, promoting/demoting, or compensating employees; offering fringe benefits; and providing access to training, mentoring or sponsorship programs, or fellowships.
- Limiting membership in workplace groups, such as affinity groups, or separating employees into groups based on protected traits when administering DEI or other trainings, even if the content is the same.
- Unlawful harassment during DEI training—i.e., harassment that results in an adverse change to a term, condition, or privilege of employment, or is so frequent or severe that a reasonable person would consider it intimidating, hostile, or abusive.
- Retaliation for objecting to or opposing employment discrimination related to DEI, participating in employer or EEOC investigations, or filing an EEOC charge. “Reasonable opposition to a DEI training may constitute protected activity” that would prohibit employer retaliation.
The guidance also emphasizes the EEOC’s long-standing position that “there is no such thing as ‘reverse’ discrimination; there is only discrimination.” According to the EEOC, Title VII’s protections “apply equally” to all employees and applicants, and not just those who belong to a minority group or are diverse, historically under-represented, or women. The guidance cautions that an employer’s business interest in “diversity” (including client or customer preference) does not justify making employment decisions motivated by a protected characteristic.
While the long-term future of Trump’s DEI-related executive orders is uncertain at this point, employers should regularly review and update their DEI programs and policies to ensure compliance with Title VII.