On March 19, 2025, the EEOC, along with the Department of Justice, issued two “technical assistance documents” that seek to provide some clarity for employers seeking to comply with the administration’s direction on DEI policies or actions by private employers. What You Should Know About DEI-Related Discrimination at Work and What To Do If You Experience Discrimination Related to DEI at Work. Top points from the guidance, which is presented in more of a FAQ format:
- Scope of Title VII Protections: The guidance reminds employers that Title VII prohibits employment discrimination based on the protected characteristics identified in the law. The guidance notes that Title VII’s protections “apply equally to all racial, ethnic, and national origin groups, as well as both sexes.”
- Reverse Discrimination Does Not Exist: The EEOC’s position is that ‘reverse discrimination’ does not exist, because Title VII’s protections do not only apply to individuals who are part of a “minority group.” Title VII’s protections apply to “majority groups,” apply equally to all workers, and there is no heightened showing of proof for so-called reverse discrimination claims.
- Business Necessity Exception Does Not Save DEI Programs: In limited circumstances, Title VII allows a bona fide occupational qualification to excuse hiring or other personnel decisions based on an individual’s religion, sex, or national origin. This limited defense specifically excludes race and color. EEOC’s new guidance expressly states that “diversity interest” shall not serve as an exception to Title VII’s prohibition on discrimination. Specifically, the guidance states “No general business interests in diversity and equity (including perceived operational benefits or customer/client preference) have ever been found by the Supreme Court or the EEOC to be sufficient to allow race-motivated employment actions.”
- Potentially Unlawful DEI Practices: DEI policies, programs, or practices may be unlawful under Title VII if they involve “an employment action motivated – in whole or in part – by an employee’s race, sex, or another protected characteristic.” Potential examples:
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- Quotas and other “balancing” practices based on race, sex, or other protected characteristics.
- Disparate treatment, which means taking an employment action that is motivated (in whole or in part) by an employee’s protected characteristics.
- Limiting, segregating, or classifying employees based on protected characteristics in a way that affects their status or deprives them of employment opportunities. This includes limiting membership in workplace groups, such as affinity groups, and separating employees into groups based on protected characteristics for DEI or other workplace trainings, even if the content is the same.
- DEI Training can create hostile work environment harassment claims, depending on the facts. Harassment is illegal when it results in an adverse change to a term, condition, or privilege of employment. Depending on the facts, 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.
- The guidance provides that “reasonable opposition to a DEI training may constitute protected activity if the employee provides fact-specific basis for his or her belief that th training violates Title VII.
Employers should use these guidelines to evaluate their current DEI programs to determine if they are consistent with the EEOC’s current definition of DEI, and, if so, consider what actions to take as a result. The Trump administration, along with the EEOC and DOJ, will be pursuing aggressive enforcement against businesses that it believes engage in illegal DEI. It remains unclear what the courts will do with the EEOC guidelines and whether courts will interpret Title VII consistent with the EEOC.