On March 19, 2025, the Equal Employment Opportunity Commission (EEOC) issued guidance and a Q&A document that provide additional details regarding what constitutes “DEI-Related Discrimination at Work” and what steps employees can take to address it through the administrative process. The guidance confirms that Title VII remains the law of the land, “prohibits discrimination based on protected characteristics such as race and sex,” and does not “provide any ‘diversity interest’ exception” to its antidiscrimination mandate.
DEI-Focused Executive Orders and Court Battles
The Trump administration has put employers – both public and private – on notice that DEI initiatives will be scrutinized and challenged. On January 21, 2025, President Trump signed Executive Order 14173 (the EO) declaring employers’ policies and practices that “use dangerous, demeaning and immoral race- and sex-based preferences under the guise of so-called [DEI]” to be illegal.
The EO applies to federal contractors but also targets private employers as it directs federal agencies to combat DEI initiatives in the private sector. Parts of the EO – most notably its enforcement provision – were enjoined nationwide by a district court judge in Virginia earlier in March. However, on March 14, the Fourth Circuit granted the Trump Administration’s application for stay pending appeal, which reinstated the EO (until further notice).
What is Unlawful DEI?
The EO broadly defined “impermissible DEI” to include (a) illegal discrimination/preferences, and (b) workforce “balancing” based on race, color, sex, sexual preference, religion, or national origin, but did not provide any examples.
In its recent guidance, the EEOC reinforced longstanding Title VII antidiscrimination principles by stating, “DEI initiatives, polices, 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 or applicant’s race, sex, or another protected characteristic.” The guidance also provides concrete examples of what the EEOC views as illegal DEI, which include:
- Disparate treatment of workers in access to or exclusion from (1) “training (including training characterized as leadership development programs),” (2) “mentoring, sponsorship, or workplace networking/networks,” and/or (3) “[i]nternships (including internships labeled as ‘fellowships’ or ‘summer associate programs’) . . .”
- Employer-sponsored (broadly defined) activities that segregate, limit, or classify workers based on a protected class “such as employee clubs or groups . . . Employee Resource Groups (ERG), Business Resource Groups (BRG), or other employee affinity groups . . .”
- Separation of workers into groups based on their “protected characteristic[s] when administering DEI or any trainings, workplace programming . . . even if the separate groups receive the same programming content or amount of employer resources.”
- Making employment decisions related to employees’ protected characteristics based on the preferences of clients, customers, or coworkers.
The guidance emphasized that Title VII applies to “all members” of a protected class – not just minorities. On that basis, the EEOC clarified that it does not recognize “reverse discrimination” claims and that the EEOC does “not require a higher showing of proof for so-called ‘reverse’ discrimination claims.”
Next Steps:
Given the EEOC’s DEI guidance, employers should:
- Review their hiring practices and materials for compliance with Title VII and the guidance.
- Assess whether any company-supported employee groups limit membership on the basis of any protected characteristic(s).
- Evaluate training programs for compliance with the guidance.
- Train managers on the guidance and how to properly document hiring, promotion, and related employment decisions.