Last week, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) released two technical assistance documents focused on potential unlawful discrimination related to diversity, equity, and inclusion (DEI) in the workplace.  

DEI initiatives have become an integral part of workplace culture, aiming to foster inclusivity and equal opportunity. However, employers have become recently attuned to the risk associated with such initiatives following the Trump administration’s various anti-DEI executive orders issued in January, including the Ending Illegal Discrimination and Restoring Merit-Based Opportunity executive order. Since issuance of those executive orders, employers have been waiting on agency guidance on what changes they will be making.

The EEOC and DOJ joint technical guidance seeks to address some of those questions.

The first guidance is a one-page flyer by the EEOC entitled "What To Do If You Experience Discrimination Related to DEI at Work." The DEI flyer outlines commonly understood information regarding Title VII’s prohibitions. While DEI is not defined under Title VII, the DEI flyer notes that "[u]nder Title VII, DEI policies, 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 race, sex, or another protected characteristic." The DEI flyer includes examples of what potential discrimination might look like.

The EEOC also issued a document entitled "What You Should Know About DEI-Related Discrimination at Work," which is a FAQ style document providing more information on the topics covered in the DEI flyer. In the DEI FAQ, the EEOC seeks to remind employers that Title VII’s protections apply to all employees, and that the agency’s position "is that there is no such thing as 'reverse' discrimination; there is only discrimination" and "the same standard of proof to all race discrimination claims, regardless of the victim’s race." 

Within the DEI FAQ, the EEOC specifically highlights that Title VII "prohibits employers from limiting, segregating, or classifying employees or applicants based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities." Under the DEI FAQ, this prohibition applies to employee activities that are employer sponsored such as clubs/groups.

The guidance also states that "[u]nlawful limiting, segregating, or classifying workers related to DEI can arise when employers separate workers into groups based on race, sex, or another protected characteristic when administering DEI or any trainings, workplace programming, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources." Thus, the EEOC provides that employers should provide "training and mentoring that provides workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascend to upper-level jobs."

The DEI FAQ provides that Title VII does not provide an exception based on "diversity interest." Specifically, the FAQ states that employers cannot use "a business necessity or interest in 'diversity'" or even a client or customer’s interest, as a basis for justifying an employment action based on race, sex, or another protected characteristic. 

The FAQ notes that "courts have held that opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII."

Key Takeaways From the Joint Guidance

Title VII Applies to All Employees Equally

• Title VII prohibits employment discrimination based on race, sex, and other protected characteristics, regardless of the group affected.

Unlawful Discrimination in DEI Practices

• Employers may not take employment actions — such as hiring, firing, promotions, compensation, training, or mentorship decisions — motivated, in whole or in part, by an individual’s race, sex, or other protected characteristics.
   
• Using quotas or balancing workforce representation based on protected traits is prohibited.

Workplace Segregation in DEI Programs 

• Limiting membership in employee resource groups (ERGs) or similar workplace affinity groups to certain demographic groups may constitute unlawful segregation.

Harassment and Hostile Work Environment Claims

• DEI training programs must be designed carefully to avoid fostering a hostile work environment.
   
• If training includes content that could be perceived as offensive or targets employees based on protected characteristics, it may give rise to a harassment claim.

Retaliation Protections for Employees

• Employees who object to unlawful DEI practices or training may be protected from retaliation under Title VII.
   
• If an employee reasonably believes a DEI policy violates Title VII and opposes it in good faith, that opposition may constitute protected activity.

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