On March 19, 2025, the U.S. Equal Employment Opportunity Commission (“EEOC”) and Department of Justice (“DOJ”) issued two new technical assistance documents addressing Diversity, Equity, and Inclusion (“DEI”) actions and programs in the workplace (collectively, the “guidance”).[1] The guidance characterizes various kinds of DEI-related initiatives as potential violations of Title VII of the Civil Rights Act of 1964 (“Title VII”) and is framed as advice to employees who may have experienced “DEI-related discrimination” in the workplace.
The guidance comes in the wake of President Trump’s Executive Order on January 21, 2025, commanding “all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.”[2] The guidance clarifies the Administration’s understanding of which DEI programs and practices may be unlawful under Title VII, which applies to private employers, not just federal agencies.
The guidance does not hold the force of law but does outline the stance the agencies intend to take in administrative and legal enforcement of Title VII in relation to DEI.
What is Title VII of the Civil Rights Act?
Title VII prohibits discrimination in hiring, compensation, and the terms, conditions, or privileges of employment, on the basis of race, color, religion, sex, or national origin.[3] Title VII also prohibits employers from classifying employees on the basis of race, color, religion, sex, or national origin, in a manner which tends to deprive an individual of employment opportunities or otherwise adversely affect their employment status because of their protected characteristics.[4]
What the Guidance Says About DEI and Title VII
The guidance explains that “Diversity, Equity and Inclusion” is a “broad term that is not defined” in Title VII.[5] According to the guidance, DEI initiatives, policies, programs, or practices may be unlawful under Title VII “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.”[6]
The joint EEOC and DOJ guidance highlights four types of possible DEI-related Title VII violations, in addition to unlawfully using quotas or otherwise “balancing” a workforce by race, sex, or other protected traits by: 1) disparate treatment, 2) limiting, segregating, and classifying, 3) harassment, and 4) retaliation.[7]
Disparate treatment: Examples of disparate treatment in the guidance includes employer actions in hiring, firing, selection for interviews, compensation, provision of benefits, promotion, or demotion, motivated in whole or in part by race, color, religion, sex, or national origin. Additionally, the guidance highlights examples of disparate treatment, such as: exclusion of persons from trainings, fellowships, or networking events, selection for interviews (including placement or exclusion from a candidate “slate” or pool), or mentorships on the basis of race, color, religion, sex, or national origin.[8]
Employers who utilize diversity fellowships or other programs targeted to providing opportunities to historically underrepresented populations should carefully review the structure of these programs. Similarly, given the aggressive language in the guidance regarding applicant screening processes, employers who seek to ensure that hiring managers are considering a diverse pool of applicants should, likewise, carefully review the specific processes they have implemented to that end.
Limiting, segregating, and classifying employees: The guidance states that limiting memberships in workplace groups, such as Employee Resource Groups (“ERG”), other employee affinity groups, or to certain protected groups, may violate Title VII. Likewise, the guidance notes that separating employees into groups, on the basis of a protected characteristic, for trainings or other benefits of employment may be prohibited, even if all groups receive the same trainings or benefits.
Employers who utilize ERGs or provide the opportunity for targeted trainings or events for employees sharing a particular affinity should review these programs.
Harassment and retaliation: The joint guidance also reiterates the statutory prohibitions on harassment and retaliation. Severe or repeated conduct or comments made on the basis of a protected characteristic may constitute harassment if it creates an intimidating, hostile, or abusive work environment. The guidance states that “[d]epending on the facts, DEI training may give rise to a colorable hostile work environment claim” if an employee can show that the training was discriminatory in content, application, or context.[9] Employers should review training materials accordingly, particularly in addressing such topics as structural racism, group privilege, and similar topics.
Retaliation: Additionally, employers are prohibited from retaliating against employees who oppose discriminatory practices, bring an EEOC complaint, or participate in an EEOC investigation, which may include DEI-related discrimination.
The EEOC guidance also emphasizes that Title VII protects all persons against actions taken on the basis of a protected characteristic, not just minority groups or historically under-represented groups. The guidance further states that neither a business interest in diversity, nor customer preference, constitutes a defense for discrimination under Title VII.
What Does This Mean for Employers Right Now?
The publication of the EEOC and DOJ guidance does not necessitate the dismantling of DEI programming by employers, although it highlights the administration’s view that DEI initiatives are fundamentally suspect and often serve as a vehicle for conduct prohibited under Title VII. As noted in the guidance, determinations of whether an employer’s DEI programming or other actions will be considered discriminatory are fact-specific. Therefore, legal advice on DEI and program structuring will not be universal; specifics matter greatly in this space.
Organizations should consult with legal counsel at ELG when developing DEI programming or reviewing existing practices to ensure compliance.
[1] The DOJ and EEOC released a short joint technical assistance document titled “What To Do If You Experience Discrimination Related to DEI at Work,” and the EEOC released a Q&A technical assistance document titled “What You Should Know About DEI-Related Discrimination at Work.”
[2] “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” The White House (Jan. 21, 2025).
[3] 42 U.S.C. § 2000e-2(b).
[4] Id. § 2000e-2(a)(2).
[5] What To Do If You Experience Discrimination Related to DEI at Work.
[6] Id.
[7] Id.
[8] What You Should Know About DEI-Related Discrimination at Work.
[9] What To Do If You Experience Discrimination Related to DEI at Work.