On March 19, 2025, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a technical assistance document titled, “What You Should Know About DEI-Related Discrimination at Work.” The document is comprised of a series of Frequently Asked Questions (FAQs) that provide guidance on what workplace diversity, equity and inclusion (“DEI”) policies and programs may be considered “illegal” by the EEOC.
The guidance document makes clear that, while DEI is not specifically defined in Title VII, DEI policies and programs may be unlawful if they involve “an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.” A summary of the key takeaways from this FAQ-based guidance is provided below.
- FAQ numbers 1 and 2 provide clear instructions on what an employee can do if they believe they have experienced unlawful DEI-related discrimination in the workplace, including how to file a Charge of Discrimination with the EEOC.
- FAQ number 4 states that the protections afforded by Title VII apply to all workers equally and that the concept of “reverse” discrimination does not exist. In short, any policy or practice that treats employees differently “based on race, sex, or another protected characteristic can be unlawful discrimination, no matter which employees or applicants are harmed.”
- FAQ number 7 expands upon what may be considered “illegal” DEI-related discrimination in the workplace. It provides that, employers are prohibited from engaging in disparate treatment with respect to any term, condition or privilege of employment. The phrase “term, condition or privilege of employment” is defined broadly to include, not just hiring/firing, promotion/demotion, job duties, compensation and fringe benefits, but also the following:
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- access to or exclusion from training and leadership development programs;
- access to mentoring, sponsorship, or workplace networking groups;
- internships, fellowships and summer associate programs; and
- selection for interviews, including placement or exclusion from a candidate pool.
FAQ number 7 further explains that DEI programs that limit membership based on a protected characteristic, such as an employee resource group or other employee affinity group (e.g., a Women’s Leadership/Networking Group) can be unlawful segregation. Instead, employers should focus on ensuring that employees of all backgrounds have equal access to workplace training, mentorship and networking programs and groups.
- Finally, FAQ numbers 10 and 11 warn employers that, in certain situations, DEI training can create a hostile work environment and that opposition to DEI training and other programs can be considered protected activity if an employee believes the program violates Title VII.
What Does this Mean for Employers?
Based on this new guidance, employers must evaluate any existing DEI-related policies and programs to ensure they do not create any preferential treatment or limitations based on race, sex or any other protected characteristic. Additionally, given the specific focus on what to do in the event an employee believes they have experienced DEI-related discrimination, employers should be aware of the potential for increased complaint activity relating to workplace DEI policies or programs. As discussed in previous posts, it is strongly recommended that audits or assessments of DEI-related programs are conducted with the assistance of counsel to ensure that the work product is protected by the attorney-client privilege.
