3 things to know about the DOJ’s new workplace guidance

The US Department of Justice (DOJ) recently issued new guidance for recipients of federal funding on its previously unclear position of what constitutes “unlawful discrimination.” While the memo does not change existing legal standards, it offers a set of “non-binding best practices” aimed at providing directional guidance with respect to workplace inclusion efforts.

1. The memo is specific to recipients of federal funding or those subject to federal anti-discrimination laws in the US, including private employers, and reflects guidance and “non-binding best practices.”

For an expert assessment of the guidance, we urge you to read this post from David Glasgow, Executive Director of the Meltzer Center for Diversity, Inclusion, and Belonging at NYU School of Law, a frequent collaborator and valued partner of Catalyst.

2. The guidelines may be relevant to Catalyst Supporters in several areas, including: training programs, employee resource groups (ERGs), and talent management/measurement with respect to the use of proxies.

Training programs:

• Programs should be open to all and not dependent on or exclusive to membership in a certain demographic group (e.g., a women-only leadership development training, a sponsorship program exclusive to Black employees, or an anti-bias training only White employees are asked to take).
  • We know most organizations have already taken steps to eliminate or adjust programs to adhere to this standard. None of the programs Catalyst offers are exclusive to any specific group.
• Programs should not “promote” discrimination, creating a “hostile work environment.”
  • Most organizations have already conducted or are presently conducting thorough audits of their programs to ensure they are designed with employee wellbeing and positive culture-building in mind, and delivered in service of creating greater fairness, respect, empathy, and inclusion. Removal of terms such as “white privilege” or “toxic masculinity,” for example, and emphasizing a non-shaming, non-blaming, invitational approach are core to this effort, as is a focus on removing barriers from the system – not discriminating against any group nor providing preferential treatment to another. We know many organizations’ programs already reflect these approaches, as do Catalyst’s programs.

ERGs:

• Companies already understand that program participation cannot be contingent upon belonging to a group with a protected characteristic.
• The guidance goes even further, to say it is not sufficient that the group (such as ERGs) be merely nominally open (e.g., in name but not in practice, or individuals from outside the protected group are informally discouraged from attending).
  • Most organizations have already made concerted efforts to open ERGs to all. Catalyst guidance on ERGs likewise reflects this approach: ERGs should be open to all with active and intentional engagement of employees across the organization, and are served well by integration with business objectives and cross-ERG collaboration.

Proxies:

• A strategy that targets “specific geographic areas, institutions, or organizations chosen primarily because of their racial or ethnic composition rather than other legitimate factors” could be considered a “potentially unlawful proxy” for race or another protected characteristic.
  • Per David Glasgow: “this gives the misleading impression that merely expanding outreach to find a more diverse applicant pool could somehow be unlawful.” It is not illegal to recruit, for example, from HBCUs or to enact other strategies to ensure your organization is casting a wide net and recruiting from a range of sources that offers your organization access to the best talent or otherwise taking steps to ensure all talent has access to opportunity.
  • Organizations should ensure that previously used race or ethnicity-based goals across their talent lifecycle are not replaced by proxy-based goals (e.g. a once-used goal such as having 15% of all new hires be employees of color, which organizations have moved away from, would not be simply replaced by a goal to have 15% of all new hires coming from HBCUs).

3. At Catalyst we take great care to ensure the trustworthiness, credibility, and compliance of our content, including backing our work with rigorous research and aligning to relevant laws, regulations, and guidelines across multiple regions.

While this should not be taken as legal advice, we are here as thought partners to offer you fact-based, real-time practical guidance. Thank you for your enduring support and know that we are here to help you navigate this moment effectively, inclusively, and with impact.