Written by Jennifer B. Rubin, Michael S. Arnold and Corbin Carter from Mintz Levin Cohn Ferris Glovsky and Popeo PC on March 20, 2025
On March 19, 2025, the U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Justice (“DOJ”) released joint “technical assistance documents” (i.e., non-binding interpretive guidelines for enforcement agents) which identify specific diversity, equity, and inclusion (“DEI”) practices that those agencies may consider “illegal” and “discriminatory.” Employers have been awaiting agency guidance following the Trump Administration’s various anti-DEI executive orders issued in January, including the Ending Illegal Discrimination and Restoring Merit-Based Opportunity executive orders (the “Executive Orders”), which we discussed here, here, and here, and which are ostensibly aimed at combatting “illegal DEI.” Despite several active litigations challenging these executive orders (discussed here), the key provisions of the Executive Orders are, at this moment, enforceable and not enjoined following the Fourth Circuit’s recent stay of an earlier nationwide injunction.
While the Executive Orders explicitly articulated the federal government’s intent to root out and punish “illegal DEI,” employers lacked guidance concerning the meaning and scope of this term. The technical assistance guidelines released this week answer some, but not all, questions about the meaning and scope of “illegal DEI”.
First, the EEOC issued a one-page summary entitled What To Do If You Experience Discrimination Related to DEI at Work (the “EEOC DEI One-Pager”) (posted here). This summary of employee rights recites basic, long understood information regarding Title VII’s prohibition against race-based or sex-based discrimination, harassment, and retaliation, and employees’ ability to file charges of discrimination with the EEOC. The EEOC One-Pager recognizes that “Diversity, Equity, and Inclusion (DEI)” is a “broad term” that is not defined by Title VII, but 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.” The EEOC DEI One-Pager provides examples of such prohibited conduct, specifically identifying unlawful quotas or an employer’s attempt to other otherwise “balance” its workforce by race, sex, or other protected traits.” Toward this end, the One-Pager indicates that DEI-related workplace discrimination might include:
- Disparate treatment as to terms or conditions of employment, including explicitly “exclusions from training,” “exclusion from mentoring or sponsorship programs,” “exclusion from fellowships,” and/or “selection for interviews (including placement on candidate slates)”;
- “Limiting membership in workplace groups, such as Employee Resource Groups (ERGs) or other employee affinity groups, to certain protected groups”;
- “Separating employees into groups based on race, sex, or another protected characteristic when administering DEI or other trainings, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources”;
- DEI-related “harassment” (where such actions otherwise meet regular Title VII “severe” or “pervasive” standards), which could include DEI training in some circumstances; or
- DEI-related “retaliation” (where such actions otherwise meet regular Title VII retaliation standards) based on an employee “objecting to or opposing employment discrimination related to DEI,” other standard protected activities, and potentially “reasonable opposition to a DEI training.”
In addition to the One-Pager, the EEOC issued a much longer FAQ-style document titled What You Should Know About DEI-Related Discrimination at Work (the “EEOC DEI FAQs”) (posted here) which elaborates on the topics that the EEOC DEI One-Pager summarizes. The EEOC DEI FAQs reminds employers that Title VII’s protections “apply equally to all workers,” that there is “no such thing as ‘reverse’ discrimination; there is only discrimination,” and that “[t]he EEOC applies the same standard of proof to all race discrimination claims, regardless of the victim’s race.”
In addition to outlining longstanding Title VII concepts, the EEOC DEI FAQs provide the following statements which the EEOC intends to illustrate these issues. The EEOC DEI FAQs:
- State that unlawful DEI discrimination may occur when employers consider protected characteristics in “any term, condition, or privilege of employment,” which includes access to leadership development training, access to mentoring or sponsoring, internships and fellowships, and interview selections.
- Confirm Title VII’s prohibition on employers “limiting, segregating, or classifying employees or applicants based on . . . protected characteristics” might implicate employer-sponsored activities such as employee clubs or group and “unlawful segregation can include limiting membership in workplace groups, such as . . . employee affinity groups, to certain protected groups.”
- State that business necessity, an “interest in diversity,” or client/customer preference will not justify employers “taking an employment action based on [any] protected characteristic.”
- With respect to hostile work environment claims, an employee may be able to “plausibly allege or prove that a diversity or other DEI-related training created a hostile work environment by pleading or showing that the training was discriminatory in content, application, or context.”
