On March 19, 2025, the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) issued two joint documents discussing Diversity, Equity, and Inclusion (DEI) in the workplace. DEI programs seek to promote fairness and ensure that all employees have equal access to opportunities and resources. This is the federal government’s first explanation of when DEI programs can cross the line and be considered unlawful. Below is a discussion of the latest guidance and what it means for employers.
President Trump’s Executive Order
One of President Trump’s very first orders was to sign Executive Order 14172. This Order directed federal agencies to combat “illegal” private sector DEI policies. However, the Order failed to explain what DEI policies would be considered unlawful. The EEOC-DOJ Guidance was created to clarify the confusion and uncertainty President Trump’s Executive Order created.
Guidance #1
The first Guidance, titled “What To Do If You Experience Discrimination Related to DEI at Work,” states a DEI policy, program, or practice can be considered unlawful under Title VII if an employment action is motivated by an employee’s race, sex, or other protected characteristic. Specifically, using “quotas” or attempting to “balance” the workforce by race, sex, or other protected traits, can constitute DEI-related discrimination in the workplace.
Employers are discouraged from limiting membership in workplace groups, such as Employee Resource Groups or affinity groups, to certain protected classes. When administering trainings and privileges of employment, employees should not be separated based on their race, sex, or other protected characteristics. Employers are prohibited from retaliating against an employee who objects or opposes employment discrimination related to a DEI program or policy. The EEOC encourages employees who believe they have experienced DEI-related discrimination to timely contact the agency to file a charge of employment discrimination.
Guidance #2
The second guidance is titled “What You Should Know About DEI-Related Discrimination at Work.” Here, the EEOC has stated that it does not require a higher showing of proof for supposed “reverse discrimination” claims. “Reverse discrimination” refers to situations where policies or practices intended to promote diversity and inclusion are perceived to disadvantage individuals who have historically been a part of dominant or majority groups. The EEOC does not believe “reverse discrimination” exists. Instead, according to the EEOC, “there is only one discrimination.” Regardless of the individual’s race, the EEOC will apply the same standard of proof to all discrimination cases because Title VII just protect marginalized or minority groups.
Employees may be able to plausibly allege that a diversity or DEI-related training created a hostile work environment. The employee would have to show the training was discriminatory in content or application. The EEOC has also stated that employees only need to show “some injury” or “some harm” has resulted in their terms, conditions, or privileges of employment. This is largely in line with the Supreme Court’s decision in Muldrow v. City of St. Louis, which we discussed in our November 5, 2024, article.
Title VII does not provide a “diversity interest” exception to its application and the Supreme Court has never adopted such an exception. For these reasons, the second Guidance has held that an interest in maintaining diversity in the workplace will not be considered strong justification to support DEI policies and practices.
Takeaway
While the EEOC-DOJ Guidance is not legally binding, it reflects how the agencies intend to enforce Title VII more aggressively when it pertains to DEI policies. Employers are encouraged to review and assess whether their policies comply with Title VII, as some commonly accepted practices may now pose legal risks. Employment decisions should refrain from taking protected characteristics into consideration.