On March 19, 2025, the Equal Employment Opportunity Commission (“EEOC”) issued two technical assistance documents (the “DEI Guidance”) addressing the application of Title VII of the Civil Rights Act of 1964 (“Title VII”) to employers’ diversity, equity, and inclusion (“DEI”) policies and practices.
A single-page document that the EEOC jointly issued with the Department of Justice, What To Do If You Experience Discrimination Related to DEI at Work, and a longer Q&A document, What You Should Know About DEI-Related Discrimination at Work, answer some questions employers have been asking since the issuance of President Donald Trump’s Executive Order, Ending Illegal Discrimination and Restoring Merit-Based Opportunity (discussed here), which directed federal agencies to take steps to encourage the private sector to end illegal DEI discrimination. Of note, the DEI Guidance was published in the form of technical assistance, given that the EEOC currently lacks the quorum necessary to achieve a majority vote, which is required for formal guidance documents. Technical assistance, on the other hand, applies existing EEOC policy to factual scenarios and can be unilaterally issued by the chair (or, in this case, acting chair) of the EEOC.
The DEI Guidance explains that DEI policies, programs, and practices “may be unlawful if they involve an employer . . . taking an employment action motivated — in whole or in part — by an employee’s race, sex, or another protected characteristic.” This language echoes prior statements made by EEOC Acting Chair Andrea Lucas, who has noted her position is that it is “just fundamentally wrong” for an employer to use race and sex as “plus factors” in employment-related decisions. The DEI Guidance makes clear that unlawful discrimination can exist even where the consideration of race or sex was not the exclusive reason for an employer’s employment action or the “but-for” (deciding) factor for the action.
According to the DEI Guidance, examples of actions that might constitute unlawful “DEI-related discrimination” include:
- Restricted access to training (including training characterized as leadership development programs), fellowships, summer associate programs, mentoring or sponsorship programs based on protected characteristics;
- Limiting membership in workplace groups, such as employee resource groups or affinity groups, to certain protected groups;
- Separating employees into groups based on protected characteristics for training or other privileges of employment (even if the separate groups receive the same programming content or amount of employer resources);
- Disparate treatment with respect to selection for job interviews, including placement or exclusion from a candidate “slate” or pool;
- Providing diversity training that is discriminatory in content, application, or context (which may create a hostile work environment); and,
- Retaliating against employees who engage in protected activity in opposing DEI-related discrimination — for example, reasonable opposition to a DEI training for which the employee provides a fact-specific basis for the employee’s belief that the training violates Title VII.
The DEI Guidance notes that, while some companies have justified their DEI initiatives based on preferences of their clients, customers, investors, employees, or other stakeholders, such a rationale does not provide a defense to Title VII claims. To the contrary, the DEI Guidance explains that DEI practices based on such preferences are “just as unlawful as decisions based on an employer’s own discriminatory preferences.”
To mitigate risk associated with potential DEI discrimination actions, employers should review their policies, practices, public disclosures, and initiatives to ensure compliance with Title VII and other applicable laws (e.g., 42 U.S.C. § 1981) and stay informed regarding any changes in the legal landscape impacting DEI efforts.
