Ever since President Donald Trump issued a handful of diversity,
equity, and inclusion ("DEI")-related executive orders in January 2025, employers
have pondered which DEI practices and programs would constitute the
"illegal DEI" the Trump administration is targeting. On
March 19, 2025, the U.S. Equal Employment Opportunity Commission
("EEOC") and the U.S. Department of Justice
("DOJ") finally shed some light on that question, issuing
a joint statement containing guidance on the employment practices
these agencies would deem to violate federal law.
The EEOC and DOJ's guidance, consisting of a FAQ-style document
and a one-page summary, explains that, pursuant to Tile VII, DEI
policies, programs, or practices may be unlawful if they involve an
employer taking employment action motived, in whole or in part, by
an employee's protected characteristic: race, sex, religion, or
national origin. Crucially, the EEOC and DOJ's guidance
provides examples of "illegal DEI" in common employment
practices, including:
- Affinity groups. Per the EEOC, it is unlawful for employers to limit membership in workplace affinity groups based on race, sex, religion, or national origin. Thus, it appears that the EEOC will find affinity groups to be a lawful as long as the employer gives all employees the opportunity to participate in the affinity group, regardless of their race, sex, or national origin.
- Training programs. The EEOC states that it is unlawful to separate workers into groups based on race, sex, religion, or national origin when administering DEI or any trainings, workplace programming, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources. What's more, depending on the facts, an employee may be able to plausibly allege that a diversity or other DEI-related training creates a hostile work environment by showing that the training was discriminatory in content, application, or context.
- Mentoring and sponsorship. Under the EEOC's guidance, it is unlawful to limit access to mentoring, sponsorship, or other workplace networks on the basis of race, sex, religion, or national origin. Accordingly, it appears that that the EEOC will not find mentoring or sponsorship networks unlawful if they are available to employees without regard to their race, sex, religion, or national origin.
Unsurprisingly, the agencies reiterated that it remains unlawful
to make decisions about hiring, firing, promotions, demotions,
compensation, or fringe benefits based, in whole or in part, on
protected characteristics.
The agencies' guidance is contained in "technical
assistance documents," which are informal EEOC guidance.
Unlike formal EEOC guidance, the Commission does not vote on the
issuance of technical assistance documents. The Commission
currently lacks a quorum to hold such a vote after President Trump
fired two commissioners in January 2025.
Despite being informal in nature, the documents offer valuable
insight into the Trump EEOC and DOJ's views on the legality of
certain common DEI practices.
Given the guidelines, and the ever-changing legal landscape,
businesses should continue to review their DEI programs and
practices to ensure compliance with federal and state law.
Businesses that have programs that run afoul of the guidance issued
by the EEOC and the DOJ should reassess their programs and alter
them to accomplish their DEI goals without engaging in unlawful
employment practices.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
