The EEOC and Department of Justice have weighed in on DEI in the workplace.
In two guidance documents, the Equal Employment Opportunity Commission (“EEOC”) presented its stance for employers to steer clear of illegal discrimination risks arising out of Diversity, Equity, and Inclusion (“DEI”) practices.
The EEOC and the Justice Department issued the guidance jointly on March 19, 2025. While the guidance is not binding on courts, they provide key insight on how current Federal leadership will view employers’ diversity practices.
Background on “Illegal” DEI, the EEOC, and Workplace Anti-Discrimination Laws
Executive Order 14173, signed by the President on January 21, 2025, directed Federal agencies to “combat illegal private-sector DEI preferences, mandates, policies, programs, and activities,” . EO 14173, however, did not specify what DEI practices would be considered illegal. Unlawful workplace diversity initiatives fall under the EEOC’s purview, being the Federal agency responsible for enforcing Title VII of the Civil Rights Act of 1964. Accordingly, the EEOC’s guidance largely constitutes the Federal administration’s first detailed depiction of what DEI is unlawful.
As a refresher, Title VII prohibits workplace discrimination on the basis of employees’ race, color, national origin, sex, and/or religion. Title VII is similar to many states’ own workplace anti-discrimination laws, including the New York State (or New York City) Human Rights Law, the Massachusetts Law Against Discrimination, and the Connecticut Fair Employment Practices Act. State laws often prohibit discrimination on a wider basis of several more protected characteristics, such as marital status, sexual orientation, ethnic traits closely associated with race (such as hair), and more.
What Does the EEOC’s Guidance Say?
The first guidance document, titled “What To Do If You Experience Discrimination Related to DEI at Work,” is a high-level overview summarizing unlawful DEI practices under Title VII. The EEOC states that DEI practices may be unlawful where “employment action” (hiring, firing, setting compensation, setting work assignments, etc.) is “motivated – in whole or in part – by an employee’s race, sex, or another protected characteristic.” The guidance does not provide a specific description for “DEI,” and instead identifies these employer practices that would violate Title VII:
- Using “quotas” or other “balancing” of the workforce on the basis of race, sex, or other protected characteristics
- Using protected characteristics as factors in hiring, firing, promotion, compensation, or recruiting
- Excluding employees or applicants from workplace opportunities based on their protected characteristics
- Limiting employee membership in “Employee Resource Groups” (ERGs) or “affinity groups.”
- Separating employees into groups based on protected characteristics for trainings, programming, or other “privileges of employment.”
- Retaliating against an employee who voices a “fact-specific basis” that a DEI training violates Title VII.
The second document, titled “What You Should Know About DEI-Related Discrimination at Work,” is an 11-item FAQ capturing some of the EEOC’s legal interpretation of Title VII as it relates to DEI. Notable points from the EEOC’s FAQ include:
- The EEOC does not believe in separate standards for “reverse discrimination,” i.e., differing legal standards for discrimination against an employee who belongs to a majority-group as opposed to discrimination against an employee belonging to a minority group.
- Title VII applies to employees, and also applicants, trainees, and interns.
- Employers have no business justification for diversity actions that call for employment decisions on the basis of protected characteristics. Title VII allows employers to factor-in certain protected characteristics if there is a “bona fide occupational qualification” (BFOQ) related to the characteristic. The FAQ illustrates that selecting employees of a particular characteristic on the basis of client or customer preferences would be unlawful.
- The EEOC believes that employees only need to show “some injury” or “some harm” to have a legitimate discrimination claim. The assertion is a logical extension of the Supreme Court’s Muldrow decision last year, which held that an employee alleging a discriminatory job transfer must show they suffered only some harm rather than “significant” harm (such as a loss in compensation). While Muldrow dealt with a job transfer, the EEOC’s answer in the FAQ suggests that the “some harm” standard will be deployed in other contexts. You can read more about the Muldrow decision here and here.
FAQs For Employers Evaluating What to do Next
It’s no secret that DEI has become a political hot-topic, with abundant headlines and opinions. Proactive employers may consider either a self-check or attorney-client privileged audit of their hiring practices and DEI initiatives. Audits can identify hidden or inadvertent discrimination risks, and, give organization leaders the necessary insight for modifying current practices.
We’ve assembled the FAQs below for employers to help identify what, if anything, they should do next. For assistance, please feel free to contact a member of our Labor & Employment team or the Harris Beach Murtha attorney you regularly work with. We will also address DEI Executive Orders in next month’s kick-off to our 2025 Labor and Employment Webinar Series. Our April 3 program will address labor and employment law implications from President Trump’s First 100 Days – please register here.
Q: Do we need to shut down our Employee Resource Groups?
A: As long as employees from any-and-all backgrounds and characteristics can join any-and-all ERGs, affinity groups, and similar groups, these practices are likely still permissible. Employers should however review whether any job opportunities or benefits—such as training initiatives, mentorship programs, networking events, etc.—may inadvertently exclude employees based on their characteristics.
Q: Should we remove references to DEI or “Diversity” from our job application and marketing materials?
A: Maybe. If “diversity” efforts are tailored to a specific protected characteristic (race, gender, etc.), those practices should be reviewed by human resources professionals and/or employment counsel.
Q: Do we still need to do anti-harassment training?
A: Several states and municipalities, such as California, New York, Connecticut, Chicago, and Washington D.C., still require specific harassment prevention trainings. While Title VII does not require any specific training, effective training will aid an employer’s litigation defense against discrimination claims. The content of any anti-harassment or inclusion trainings should be reviewed to ensure they do not single out specific characteristics without reason.
Q: Can we ask questions about a candidate’s background in a job interview?
A:Questions about candidate’s background should be limited to their credentials, like work experience and educational background. Questions designed to elicit responses about a candidate’s personal characteristics—such as ethnic origin, religious affiliation, marital status, and/or family status—should be avoided.
Q: Can we still promote diversity initiatives in the workplace?
A: As long as the initiatives do not exclude individuals or groups, diversity initiatives can still be lawful.
Q: Should we get rid of our affirmative action programs or hiring quotas?
A: Title VII and similar state laws do not require affirmative action programs (AAPs) or hiring quotas. Unless an organization is confident they have an obligation under other law(s) to maintain a quota or AAP, organization leaders should immediately work with employment counsel to review and likely discontinue these practices. Generally, employers who operate(d) as Federal contractors subject to the Office of Federal Contract Compliance Program (“OFCCP”) may have existing AAPs by virtue of prior requirements from Executive Order 11246. But the same Executive Order targeting workplace DEI discussed above (EO 14173) also revoked EO 11246, including the EO 11246 requirements related to Affirmative Action Programs. These businesses should work with employment counsel to review their AAPs and related practices. (Contractors should also note that AAP requirements based on Veteran status and disability status were not affected by the revocation of EO 11246, and these requirements are still in effect).
