Inclusion: What It Means for Employers

What it means in practice

What inclusion means. In HR usage, inclusion describes whether the people in a workforce can participate fully, using the training, mentoring, networks, information and social events that come with the job without being harassed. Diversity, by contrast, describes the mix of people an employer hires. No federal statute defines "inclusion," and the EEOC says DEI is a broad term not defined in Title VII of the Civil Rights Act of 1964. Federal law instead contains specific duties: the bans on harassment and on segregating employees, accommodation for disability and religion, language and national origin rules, and Section 503 for federal contractors.

The federal position in 2025-2026. Executive Order 14173, "Ending Illegal Discrimination and Restoring Merit-Based Opportunity," was signed January 21, 2025 (90 FR 8633). It revoked Executive Order 11246 of 1965, let contractors keep following the old regulatory scheme for 90 days, and directed the Office of Federal Contract Compliance Programs (OFCCP) to immediately cease promoting "diversity," holding contractors responsible for taking "affirmative action," and allowing workforce balancing based on race, color, sex, sexual preference, religion or national origin. Agencies must put in every contract or grant a term making compliance with federal anti-discrimination laws material to payment decisions, and a certification that the counterparty does not operate DEI programs that violate those laws. For the private sector, it asked the Attorney General for an enforcement plan in which each agency would identify up to nine potential civil compliance investigations of large organizations such as publicly traded corporations. OFCCP's home page, checked October 2026, says EO 11246 enforcement ceased under Secretary's Order 03-2025 of January 24, 2025, and DOL's rule rescinding the EO 11246 regulations took effect October 26, 2026 (91 FR 54444). For what remains of contractor programs, see affirmative action.

What the March 2025 technical assistance says about inclusion programs. The joint EEOC and DOJ one-page document "What To Do If You Experience Discrimination Related to DEI at Work" and the EEOC's longer "What You Should Know About DEI-Related Discrimination at Work," both released March 19, 2025, say a DEI program may be unlawful if it involves an employment action motivated in whole or in part by a protected characteristic. For inclusion programs, the Q&A explains that Title VII's ban on limiting, segregating or classifying employees (42 U.S.C. 2000e-2(a)(2)) reaches employer-sponsored activities, including those given company time, facilities or other encouragement, such as employee clubs. Unlawful segregation can include limiting membership in employee resource groups or other affinity groups to certain protected groups, and separating workers by protected characteristic for trainings even when each group gets the same content. Access to mentoring, sponsorship, networks and leadership development is covered by the ban on disparate treatment, and the Q&A says employers should offer training and mentoring to workers "of all backgrounds." A training can support a hostile work environment claim if it was discriminatory in content, application or context. The diversity entry covers the rest of this guidance, which the EEOC Chair's February 26, 2026 letter to large employers calls technical assistance; the statute is the binding rule.

Harassment: the baseline every covered employer shares. The EEOC describes harassment as unwelcome conduct based on race, color, religion, sex, national origin, age (40 or older), disability or genetic information. It becomes unlawful when enduring it becomes a condition of continued employment, or when it is severe or pervasive enough that a reasonable person would find the workplace intimidating, hostile or abusive; petty slights and isolated incidents, unless extremely serious, do not. The employer is automatically liable for supervisor harassment that ends in a negative employment action such as termination; for a supervisor-created hostile environment it avoids liability only by proving it reasonably tried to prevent and promptly correct the behavior and the employee unreasonably failed to use those opportunities. For co-workers and non-employees it controls, such as customers, it is liable if it knew or should have known and failed to take prompt corrective action. Harassment for filing a charge or opposing discrimination is also prohibited; see retaliation.

Status of the 2024 harassment guidance. The EEOC approved its Enforcement Guidance on Harassment in the Workplace on April 29, 2024 by a 3-2 vote. On May 15, 2025, in Texas v. EEOC, a federal court in the Northern District of Texas vacated portions of it nationwide, holding its expanded definition of "sex" contrary to law. The Commission then voted 2-1 on January 22, 2026 to rescind the guidance; its January 23, 2026 press release quotes the Chair saying federal laws against harassment and Supreme Court precedent "remain firmly in place." The EEOC's harassment page, checked October 2026, carries a notice that it is being reviewed for compliance with the law and executive orders.

Disability: inclusion that the ADA requires. The ADA applies to employers with 15 or more employees and makes it discrimination not to make reasonable accommodation to the known limitations of a qualified applicant or employee with a disability unless the employer can show undue hardship (42 U.S.C. 12112(b)(5)(A)). Accommodation covers the application process, how a job is performed, and equal benefits and privileges of employment (29 CFR 1630.2(o)). It may include accessible facilities, job restructuring, modified schedules, reassignment, equipment, adjusted training materials or policies, and readers or interpreters; undue hardship means significant difficulty or expense judged against factors such as cost and the employer's resources (42 U.S.C. 12111(9)-(10)). The EEOC's guidance says benefits and privileges include employer-sponsored training, services such as cafeterias and transportation, and parties or other social functions, so an employee who needs an accommodation to attend a company outing is entitled to one absent undue hardship. Employees must also have access to information given to other employees, whether or not they need it for the job; the guidance's example is adaptive equipment that must be updated when the employer upgrades its computer network. A request can be made in plain English, after which the parties should engage in an informal interactive process. Where several accommodations would work, the employer may choose the less costly one. See the ADA, accessibility and adaptive device entries.

Religion: accommodation and the Groff standard. Title VII defines religion to include all aspects of religious observance and practice, as well as belief, unless the employer cannot reasonably accommodate it without undue hardship on the conduct of its business (42 U.S.C. 2000e(j)). Sincerely held moral or ethical beliefs can qualify (29 CFR 1605.1). In Groff v. DeJoy, decided unanimously on June 29, 2023, the Supreme Court held that an employer must show that granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business. Effects on co-workers count only to the extent they affect the business, hardship attributable to hostility to a religion or to accommodation cannot be undue, and an employer must consider other options rather than simply conclude that making others work overtime is an undue hardship. The EEOC says Groff supersedes contrary EEOC material, although 29 CFR 1605.2(e)(1), as of October 1, 2026, still uses the older "more than a de minimis cost" wording. The EEOC lists flexible scheduling, voluntary shift swaps, reassignments and policy changes as common accommodations, covers dress and grooming practices such as head coverings, and says an employee cannot be forced to take part, or not take part, in a religious activity. Moving an employee out of customer contact because of religious garb and customer preference is prohibited segregation.

Language, accent and national origin. The EEOC's 2016 national origin guidance says decisions or harassment based on accent may violate Title VII, and an accent may be considered only if it materially interferes with job performance, shown by evidence that effective spoken English is needed for the duties and that the accent interferes with it. An English fluency requirement is generally permissible only if required for effective performance of the specific position. Under 29 CFR 1606.7, a rule requiring employees to speak only English at all times is presumed to violate Title VII; a rule limited to certain times must be justified by business necessity, and employees should be told when it applies and the consequences of breaking it, or the EEOC will treat discipline under it as evidence of discrimination. The EEOC's national origin page adds that Title VII also protects Americans, and that preferring foreign or visa workers can be national origin discrimination.

Federal contractors: Section 503. Section 503 rules cover federal contracts and subcontracts in excess of $20,000 (41 CFR 60-741.4). Contractors with 50 or more employees and a contract of $50,000 or more must prepare a written affirmative action program within 120 days of the contract starting and update it annually (41 CFR 60-741.40). Its elements include reasonable accommodation absent undue hardship, procedures to prevent disability harassment, outreach, and training for personnel involved in hiring, promotion and discipline (41 CFR 60-741.44). DOL's final rule effective September 21, 2026 removed the invitation to self-identify disability status (60-741.42), the related data collection (60-741.44(k)) and the utilization analysis with its 7 percent goal (60-741.45) (91 FR 54482). OFCCP states that Section 503 and VEVRAA and their regulations remain in effect and that the AAP certification period will remain closed.

Worked example: a small contractor. A supplier with 60 employees holds a $40,000 federal subcontract. Because $40,000 is in excess of $20,000, the Section 503 equal opportunity clause and its nondiscrimination and accommodation duties apply. No written affirmative action program is required, because the contract is below $50,000, even though the 50-employee test is met. With fewer than 150 employees, its Section 503 minimum retention period for records such as accommodation requests is one year (41 CFR 60-741.80). With 60 employees it is also covered by Title VII and the ADA.

Worked example: two employee groups. Employer A sponsors a parents' network on company time that is open to any employee. Employer B sponsors a mentoring circle on company time limited to employees of one sex. Under the EEOC Q&A, B's limit is the kind that can be unlawful segregation, because the group is employer-sponsored and membership turns on a protected characteristic.

Recordkeeping. Title VII and ADA employers must keep personnel records, expressly including accommodation requests and selection for training, for one year from the record or action, whichever is later, and keep relevant records after a charge until final disposition (29 CFR 1602.14). Employee medical information goes in separate, confidential medical files, though supervisors may be told of necessary restrictions and accommodations (29 CFR 1630.14(c)).

Where states differ. As one example, the California Civil Rights Department says the state discrimination law covers employers of 5 or more employees, harassment is prohibited in all workplaces, and complaints generally must be filed within three years. As a second example, New York State guidance says its Human Rights Law applies to all employers regardless of size, no longer requires harassment to be severe or pervasive, and requires sexual harassment prevention training at least once a year. Check your own state's civil rights agency.

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