EEOC and DOJ Issue Guidance on DEI at Work

On March 19, 2025, the U.S. Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) issued two non-binding guidance documents on diversity, equity, and inclusion (DEI) practices in the workplace.

DOJ and EEOC Joint Guidance “What To Do If You Experience Discrimination Related to DEI at Work”

First, the “technical assistance document,” issued jointly by the DOJ and EEOC, is titled “What To Do If You Experience Discrimination Related to DEI at Work.” The guidance is based on Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on protected characteristics including race, color, religion, sex, and national origin. This joint guidance reiterates that discrimination on any of these bases is unlawful, regardless of who is being impacted. In other words, this guidance reaffirms recent Supreme Court decisions holding that discrimination is discrimination regardless of the person’s race or sex, and so-called “reverse discrimination” is still unlawful discrimination. For example, an employer promoting a less-qualified minority or female over a better-qualified male is engaging in unlawful discrimination in the same manner as an employer promoting a less-qualified male over a more-qualified minority or female. This statement does not represent any change in the law and is consistent with Title VII and recent Supreme Court cases, including Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (see our blog post on that decision here).

Beyond merely restating existing law, there is new, relevant information contained in the “What To Do If You Experience Discrimination Related to DEI at Work” guidance. The jointly-issued DOJ and EEOC guidance expressly states: “DEI policies, programs, or practices may be unlawful if they involve an employer … taking an employment action motived – in whole or in part – by an employee’s race, sex, or another protected characteristic” (emphasis in original). The guidance goes on to identify several employer actions that are considered to constitute unlawful discrimination, including:

1. use of quotas or other actions to “balance” a workforce by race, sex, or other protected traits;
2. hiring, promotion, compensation, demotion, or termination of a person based on race, sex, or other protected traits;
3. excluding persons from training, “leadership development,” internships, fellowships, mentoring, or sponsorships based on race, sex, or other protected traits;
4. selection for interviews and placement on “candidate slates” of persons based on race, sex, or other protected traits;
5. limiting employee resource, affinity, networking, and/or “business resource” groups to those persons in a particular protected class;
6. segregating or separating persons by protected class in trainings, programming, employment resources, or other terms and conditions of employment; and
7. any of the foregoing applies equally to employees as well as potential and actual job applicants, interns, and training program participants.

Based on this guidance, the DOJ and EEOC have reiterated that quotas or other practices intended to promote or benefit any group in any way based on a protected characteristic will be considered unlawful. Affinity groups or employee resource groups based on any protected or other characteristic remain lawful provided such groups are not “exclusive” to persons with that characteristic. Employers with such affinity or resource groups should review the policies or practices for these groups to ensure there are no “exclusivity” provisions. Training, mentoring, fellowship, sponsorship, and other programs intended to assist persons with protected characteristics likewise cannot be “exclusive” to those persons. Employers with any such programs intending to assist persons with protected characteristics should review the policies or practices for these programs to ensure there are no “exclusivity” provisions. Any classes, resources (print or online), events, or other programming intended for the benefit of employees with protected characteristics must be made available to all employees. For example, a “resources for immigrant employees” webpage listing various third-party groups and programs that support immigrant families must be accessible to all employees, and a “Black History Month” program must be available to all employees. Finally, employers with outreach programming to attract potential and actual job applicants, such as participating in career fairs, should ensure that such programming or career fairs are open to all persons regardless of protected class status. For example, an employer participating in a “women in construction trades” program and hiring fair should ensure that the hiring fair is not restricted to women only (most if not all such programs already do not have unlawful restrictions).

The guidance ends by reiterating that harassment based on protected class status or retaliation for reporting such harassment remain unlawful, and provides links to report such unlawful actions.

EEOC-Issued Guidance “What You Should Know About DEI-Related Discrimination at Work”

Second, the EEOC alone issued a questions and answer style document titled “What You Should Know About DEI-Related Discrimination at Work.” This EEOC-specific technical assistance document begins by stating: “Under Title VII, DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer … taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.” This guidance goes on to include frequently asked questions (FAQ) and answers relating to potential discrimination charges and lawsuits.

Question One

The first question relates to whether a person who believes they have experienced discrimination can file suit directly in federal court. The response explains that the person must first file a charge of discrimination with the EEOC, and provides a link to do so.

Question Two

The second question asks what agency can assist employees with filing discrimination charges and employers in the process. The response then describes the EEOC and its programs, including the conciliation process sponsored by the EEOC, and the EEOC investigations and findings process.

Question Three

The third question relates to federal employees and refers federal employees to the EEO counselor at the employee’s specific federal agency.

Question Four

The fourth question asks about “reverse discrimination” and re-states that discrimination against any person based on a protected characteristic is unlawful, which is consistent with current law.

Question Five

The fifth question asks if only employees are protected by Title VII, and responds that Title VII applies to employees, applicants, training programs, interns, and others engaged in pre-employment or employment programs.

Question Six

The sixth question asks what employers are “covered” by Title VII. The response explains that Title VII applies to employers with 15 or more employees, as well as employment/staffing agencies, recruiting agencies, entities operating or sponsoring job training programs, and labor unions.

Question Seven

The seventh question asks what DEI programs or practices are unlawful under Title VII. The response explains that a claim arises when any practice or program that results in disparate treatment against an applicant or employee in “hiring, firing, compensation, or any term, condition, or privilege of employment” resulting in “some injury” or “some harm” in the terms, conditions, or privileges of employment. Specifically referenced are “access to or exclusion from training and “leadership development programs” as well as internships/fellowships/summer associate programs.

Questions Eight and Nine

The eighth and ninth questions ask if discrimination on a protected characteristic or for “business necessity” is lawful if it was not the sole or deciding factor. The response is consistent with applicable law and states that any consideration of a protected characteristic in the employment process is unlawful, even if not the sole or deciding factor.

Question Ten

The tenth question asks if a DEI program can create a claim for “hostile work environment.” The response outlines that some courts have found that DEI-based discriminatory training programs can give rise to Title VII claims.

Question Eleven (Final Question)

The final question asks if retaliation against a person opposing conduct that is unlawful under Title VII is protected and answers affirmatively, consistent with long-standing law.

Takeaways for Employers

1. Employers using prepared applicant questions, lists, scoring sheets, or similar online or printed documents for hiring and promotion considerations and interview processes should ensure that such documents and processes do not list or take any protected characteristics into account in the candidate evaluation process. However, veteran-preference programs and points are still required, and certain blind employee programs are permitted.
2. Affinity groups and resources/programs geared to support protected class groups remain lawful provided they are open to all persons. Employers should review all programs and policies referencing protected class characteristics, including employee online and print resources, affinity groups, and training/promotion programs, to ensure all such programs and information are open to all employees regardless of protected class status.
3. For employers participating in career fairs, apprenticeship or training programs, or similar programming sponsored or operated by third parties, employers should ensure such events and programs are open equally to all persons regardless of protected class status.
4. For employers using staffing or recruiting agencies, employment agencies, or third-party job training programs, employers should be aware that both employers and those third-party entities/programs may be liable for unlawful Title VII discrimination.
5. For employers with employees referencing or complaining about discrimination, or making claims with the EEOC, steps should be taken to ensure no retaliation occurs, consistent with long-standing applicable law.