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Takeaways
- DEI programs that involve quotas, restrict participation, or employ diversity-based selection criteria face heightened legal risk.
- Employers may need to revisit DEI training content to avoid claims of discrimination or hostile work environments.
- Proactive compliance reviews in 2025 can help employers reduce litigation and enforcement exposure heading into 2026.
As 2025 comes to a close, all U.S. employers face several important legislative and regulatory updates that reshape the workplace landscape heading into 2026, related to changes in federal law. A summary of such important updates applicable to all employers is provided below:
EEOC and DOJ Issue Guidance on DEI-Related Discrimination
On March 19, 2025, the U.S. Equal Employment Opportunity Commission ("EEOC") and the U.S. Department of Justice ("DOJ") jointly issued a press release and guidance cautioning employers that certain diversity, equity, and inclusion ("DEI") initiatives may violate Title VII of the Civil Rights Act of 1964, as amended. The announcement marked a significant shift in federal enforcement priorities under the current administration, emphasizing that employment actions motivated—even in part—by an individual's race, sex, or other protected characteristic could constitute unlawful discrimination.
The agencies released two companion documents:
- "What To Do If You Experience Discrimination Related to DEI at Work" – a one-page technical assistance document (the "Guidance"); and
- "What You Should Know About DEI-Related Discrimination at Work" – a more detailed set of FAQs.
Both documents warn that employer DEI programs may be unlawful if they involve:
- Implementing quotas or attempting to "balance" a workforce by race, sex, or other protected traits;
- Limiting participation in training, mentoring, sponsorship, or networking opportunities based on protected characteristics;
- Selecting or excluding candidates from interview slates or employment opportunities because of protected traits; or
- Restricting membership in employee resource groupsto certain demographic groups.
The FAQs further clarify that Title VII protects all workers, including those in majority groups, and that there is no legal distinction between "reverse" discrimination and other forms of discrimination. They also caution that DEI training could give rise to a hostile work environment claim if the content, design, or implementation is discriminatory in nature.
The EEOC's new guidance signals a heightened focus on DEI-related discrimination enforcement, urging employers to review and, if necessary, revise existing DEI programs to ensure compliance with Title VII. As a result, all employers should consider:
- Opening DEI-related programs, mentorships, and fellowships to all employees;
- Avoiding diversity-based interview slate requirements;
- Ensuring employee resource groups are inclusive and open to all interested participants; and
- Reviewing DEI training materials to avoid "unconscious bias" content that could be construed as discriminatory.
The EEOC has indicated that it will continue to scrutinize DEI-related employment practices closely in 2025 and beyond.
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.
