On March 19, 2025, the United States Equal Employment Opportunity Commission (EEOC) and the United States Department of Justice (DOJ) issued two “technical assistance documents” that address potentially unlawful employment discrimination related to Diversity, Equity, and Inclusion (DEI) programs. These documents reiterate longstanding law and remind employers that they may not discriminate on the basis of race or other protected characteristics even in an effort to foster diversity, equity, or inclusion among their workforces.
Given the political nature of the discussion around DEI, these technical assistance documents (copies of which are available here and here) have generated a good deal of press and discussion. There has even been some talk of criminal proceedings related to DEI policies. So what should employers do in light of these new documents and the change in focus by regulators?
As we noted earlier this year and in early 2024, the underlying law has not changed, it is illegal to treat employees or applicants for employment differently because of their race, color, religion, sex, national origin, or any other protected characteristic. The technical assistance document asserts that “there is no such thing as ‘reverse’ discrimination; there is only discrimination.” While there is currently a split among federal appellate courts on the standard a plaintiff must meet in a reverse discrimination claim, it is anticipated that the Supreme Court will likely resolve this by getting rid of the heightened standard followed by some federal appellate courts.
Employers should take this opportunity to review their non-discrimination policies and any DEI policies and training materials they may have. Most such policies are fully lawful, but there are certainly examples of policies that result in discrimination on a protected basis. In this regard, employers should keep in mind that the EEOC’s guidance caution that, “[d]epending on the facts,” DEI-related training could create a hostile work environment if an employee establishes that the training was “discriminatory in content, application, or context.” Undertaking a review of its policies, practices and training materials with the assistance of counsel will help an employer identify and change such documents, if needed, as part of its broader efforts to continue to prevent discrimination and to create circumstances to maximize the chances of success for every employee, regardless of race, sex, or other protected characteristics.
While the current focus may be on “DEI-Related Discrimination,” claims of discrimination brought by individuals who are in underrepresented groups are far more common than any claims that arise from DEI programs. Employers who wholesale retreat from programs and policies designed to address an increasingly diverse workforce are far more likely to find themselves in trouble under state and federal anti-discrimination laws than employers who appropriately and lawfully address the issues raised by an increasingly diverse workforce.
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