On March 19, 2025, the US Equal Employment Opportunity Commission ("EEOC") released two documents to inform employers and employees how civil rights laws apply to diversity, equity, and inclusion ("DEI") policies, programs and practices in the workplace.
A one-page technical assistance document, "What to Do If You Experience Discrimination Related to DEI at Work,"provides basic information on recognizing and addressing DEI-related discrimination. It notes "DEI policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee's race, sex, or another protected characteristic." A more detailed question-and-answer technical assistance document, "What You Should Know About DEI-Related Discrimination at Work," serves as a roadmap on how the EEOC will apply Title VII of the Civil Rights Act of 1964 ("Title VII") to DEI initiatives and outlines the process for filing charges of discrimination with the EEOC. It emphasizes that Title VII does not only apply to individuals who are part of a "minority group," but applies equally to all workers. The EEOC's position is that "there is no such thing as 'reverse' discrimination; there is only discrimination."
The release of these documents underscores the federal government's growing scrutiny of DEI initiatives. In particular, the question-and-answer document highlights potential legal pitfalls for employers when implementing or managing DEI programs.
EEOC's Guidance in its Question-and-Answer Document
In this technical assistance document, the EEOC clarifies when DEI initiatives may cross the line into unlawful discrimination under Title VII. The guidance explains that Title VII prohibits employment decisions based on race, sex or other protected characteristics — even if DEI programs are aimed at promoting diversity.
The responses to Question 7 explain that DEI initiatives may be unlawful if they involve employment actions motivated by "protected characteristics" under Title VII, such as race or sex. Employers are prohibited from "limiting, segregating, or classifying employees or applicants based on race, sex, or other protected characteristics" in any manner which affects their status or deprives them of employment opportunities. For example, it would be unlawful to limit membership in employer-sponsored activities for employees such as clubs or groups, including limiting membership in workplace groups, such as Employee Resource Groups ("ERGs") or other employee affinity groups.
Further, separating employees by their protected characteristics during DEI or other workplace trainings is prohibited, even if the groups receive the same content or resources. Employers also cannot restrict or grant access to mentorship, sponsorship, internship, fellowship or networking programs, including skill-building or leadership development programs, based on these protected traits. "Employers also should ensure that employees of all backgrounds ... have equal access to workplace networks."
The responses to Questions 10 and 11 warn that DEI training could create a hostile work environment and/or give rise to claims of harassment. The EEOC highlights court cases in which employees successfully alleged that DEI-related training was discriminatory. For example, the EEOC notes that courts have ruled in favor of plaintiffs who provided evidence that DEI programs were discriminatory "in content, application, or context." The technical assistance documents reference that "opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII."
Next Steps for Employers
In light of these recent developments, all employers should evaluate their current DEI-related policies, practices and programs by conducting legally-privileged audits and risk assessments to ensure compliance with existing anti-discrimination statutes, such as Title VII. Any DEI initiative which uses race, gender or similar classification as an eligibility criterion should be particularly analyzed, including those policies, practices and programs related to recruitment, hiring, workplace affinity and culture, and promotion. Employers are still permitted to advertise that they are an equal opportunity employer and do not discriminate on the basis of any applicable legally protected characteristic. Care should be taken as well regarding language used in describing DEI initiatives on websites and in other public disclosures.
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