Employment Law Alert: EEOC and DOJ Issue Guidance on Potential DEI-Related Discrimination

The current federal administration has challenged diversity, equity, and inclusion (DEI) initiatives through a series of controversial executive actions targeting workplace diversity programs. Specifically, during his first week in office, President Trump issued two sweeping executive orders that dramatically restricted purportedly "illegal" DEI efforts across federal agencies and private sector organizations. Simultaneously, through executive order, the administration also eliminated existing affirmative action requirements for federal contractors. Further, as part of this federal change in direction, the administration restructured the Equal Employment Opportunity Commission’s (EEOC's) leadership by appointing Andrea Lucas as Acting Chair—a move widely interpreted as signaling a more restrictive approach to DEI programs.

The new executive orders, however, have not gone unchallenged. In February, a federal court in Maryland initially blocked portions of the DEI restrictions. However, on March 14th the U.S. Court of Appeals for the Fourth Circuit lifted the injunction, allowing the administration to proceed with its directives while ongoing litigation continues. The court ruled that while agency actions under the executive orders could be unconstitutional, the orders themselves are not unconstitutional on their face.

The ambiguity in the executive orders regarding what the new administration considers “illegal DEI,” combined with the ongoing legal disputes, has left many employers uncertain about whether they can continue to maintain their DEI initiatives and, if so, how to structure them. Seeking to address this uncertainty, on March 19th, the EEOC and the U.S. Department of Justice (DOJ) jointly issued guidance in the form of two technical assistance documents for the purpose of “educating the public about unlawful discrimination related to ‘diversity, equity, and inclusion’ (DEI) in the workplace.” The guidance explains that DEI initiatives, policies, programs, or practices may be unlawful under Title VII—which prohibits employment discrimination based on race, color, religion, sex, or national origin—if they involve an employer taking an employment action motivated in whole or in part by an employee’s or applicant’s race, sex, or another protected characteristic.

EEOC and DOJ Guidance on DEI Programs

The EEOC issued a detailed technical assistance document, "What You Should Know About DEI-Related Discrimination at Work," outlining how the current EEOC applies Title VII to DEI-related employment practices. Additionally, the EEOC and DOJ released a one-page resource, "What To Do If You Experience Discrimination Related to DEI at Work," which provides employees with guidance on recognizing and addressing unlawful discrimination.

Key takeaways from the EEOC’s guidance include:

1. DEI Policies Must Comply with Title VII

Employers cannot use race, sex, or other protected characteristics as a factor in hiring, promotions, terminations, or any other employment decision. Even if an employer’s goal is to increase diversity in the workplace, the guidance admonishes that any preference or disadvantage based on a protected characteristic could be unlawful under Title VII.

2. Equal Access to Development Opportunities

The guidance states that programs such as mentorship initiatives, leadership training, professional development, and internships must be open to all employees. Restricting access based on a protected characteristic—such as offering a leadership program exclusively for women or minority employees—may be considered discriminatory.

3. Employee Resource Groups (ERGs) and Affinity Groups Must Be Inclusive

While many companies support ERGs or affinity groups for employees from underrepresented backgrounds, the guidance states that these groups must be open to all employees. Employers should avoid policies that grant employment-related benefits, training, or promotions exclusively to members of certain ERGs.

4. No “Business Justification” Exception for Discrimination

The EEOC reaffirmed its position that there is no legal exception that allows race- or sex-based employment decisions simply because they serve a business goal. EEOC states that efforts to enhance workplace diversity or meet customer expectations do not justify employment decisions that consider protected characteristics.

5. DEI Training and Workplace Messaging Should Be Carefully Designed

Some DEI training programs may create legal risks if they involve stereotyping or make generalizations based on race or sex. Training content should avoid messages that could be construed as discriminatory. Employers should note that EEOC may interpret an employee’s objection to DEI-related training, such as “unconscious bias training,” as protected activity if the employee provides a fact-specific basis for their belief that the training violated Title VII.

6. Employers Should Take a Consistent Approach to Anti-Discrimination Enforcement

Employers should apply anti-discrimination policies consistently, regardless of the identity of the individuals involved. Any reports of discrimination—whether related to DEI initiatives or otherwise—should be handled promptly and in accordance with company policies.

What This Means for Employers

The EEOC’s new guidance signals increased scrutiny of employment decisions that consider race, sex, or other protected characteristics in the name of DEI. To minimize legal risk, employers should:

• Review hiring, promotion, and compensation policies to ensure that all decisions are made based on qualifications, experience, and performance rather than protected characteristics.
• Evaluate mentorship, internship, and training programs to confirm they are open to all employees, rather than reserved for specific demographic groups.
• Assess DEI training materials for any content that could be interpreted as promoting race- or sex-based stereotyping.
• Ensure ERGs and affinity groups are inclusive and do not provide employment advantages or exclusive opportunities based on race, sex, or other protected traits.
• Train managers and HR professionals on the legal limitations of DEI-related employment actions and the importance of making neutral employment decisions.

While DEI remains an important strategic priority for many organizations, the new EEOC and DOJ have made it clear that they intend to scrutinize such initiatives for signs of discrimination against non-minorities. Employers should, therefore, carefully review their DEI programs to determine whether any adjustments are appropriate for legal risk mitigation, and to ensure legal compliance.

We will continue to monitor developments and provide further updates as guidance evolves. In the meantime, employers seeking additional guidance may contact any of the firm’s attorneys.