EEOC Documents on DEI Programs Increase Pressure on Employers

On March 19, 2025, the U.S. Department of Justice (DOJ) Office of Public Affairs issued a press release announcing two technical assistance documents jointly released by the U.S. Equal Employment Opportunity Commission (EEOC) and the DOJ. The stated purpose of the technical assistance is to encourage whistleblowers to file discrimination charges with the EEOC relating to unlawful diversity, equity, and inclusion (DEI) programs or practices or, in the case of state and local government employees, with the Department of Justice.

It provides employees with instructions on how and where to file a claim of DEI related discrimination, along with descriptions of the types of DEI-related programs and activities that may constitute unlawful DEI under the current Administration’s policies. For employers, the technical guidance offers insight into the types of DEI activities that will be targeted by the Administration.

Technical Guidance – Identifying Unlawful DEI

The guidance categorizes potential claims of discrimination arising from “illegal DEI” practices and policies into four types of claims under Title VII: 1) intentional discrimination; 2) limiting, segregating, or classifying employees based on race, sex, or other protected characteristic; 3) harassment; and 4) retaliation. With respect to how those claims may arise, the guidance provides the following key details.

General Guidance

1. Title VII anti-discrimination protections apply to all races and males as well as females. The guidance makes clear that claims of discrimination based on race or sex, are not limited to minorities and females. It clarifies that the standard of proof applied by the EEOC in a Title VII discrimination claim is the same for plaintiffs who are members of either a majority or minority group.
2. Title VII applies to applicants, employees, interns, and participants in training or apprenticeship programs. Interns may be covered under Title VII as employees, applicants, or as training program participants. Volunteers, including unpaid interns, may be covered if work is required for regular employment, or if the internships regularly lead to employment with the same entity.
3. A DEI initiative policy or program is unlawful if an employer intentionally discriminates by taking an employment action motivated in whole or in part by race, sex, or another protected characteristic. According to the guidance, intentional discrimination based on a protected characteristic does not need to be the sole cause of the harm to be actionable; it need only have been one of the factors that motivated the alleged unlawful employment action. Further, the guidance emphasizes that workers need only show that some injury or some harm has affected their terms, conditions, or privileges of employment.
4. Intentional discrimination is prohibited in a wide range of employment and personnel activities. The list includes the following employment activities: access or exclusion to training, mentoring, sponsorship, networking, internships, fellowships, summer associate programs, job duties, and work assignments, along with typical personnel activity related to hiring, recruitment, termination, promotion, demotion, compensation, and fringe benefits.
5. A business necessity, such as client, customer, or coworker preference, is not a defense to a claim of race discrimination. A bonafide occupational qualification may be used in strictly limited circumstances and only with respect to protected characteristics based on religion, sex, or national origin. This limited exception excludes race and color. No “diversity interest” exception exists to permit race based employment actions.

Potentially Unlawful DEI Activities

1. Diverse candidate slate or pool policies, including placement or exclusion from the pool, could constitute evidence of discrimination in the selection for interviews. Requesting information on race or other protected characteristics at the pre-employment stage may suggest that the information was used unlawfully to make selection decisions. More generally, the guidance states that workforce balancing and the use of quotas based on protected characteristics may be unlawful.
2. ERGs, BRGs (Business Resource Groups) or affinity groups can be unlawful if membership is restricted to certain protected groups. Employers may not limit, segregate, or classify employees or applicants based on race, sex, or other protected characteristic such that their status or employment opportunities are affected. The prohibition extends to employer sponsored activities and activities in which the employer officially or unofficially encourages participation.
3. Trainings, including DEI training, workplace programming or other “privileges of employment” which limit, segregate, or classify workers based on sex, race, or other protected characteristic can be unlawful even if separate groups receive the same programming content or amount of employer resources. Employees of all backgrounds also should have equal access to workplace networks. Employers should provide training and mentoring that provides workers of all backgrounds the opportunity, skills, and experience to perform well.
4. DEI or diversity related training may create a hostile work environment to support a claim of harassment. Without specifying any fact-specific example, the guidance maintains that a hostile work environment claim may exist, if the plaintiff pleads plausible allegations and presents plausible evidence of how the trainings content, application, or context was discriminatory
5. Claims of retaliation based on opposition to a protected activity may be supported by evidence that the individual opposed unlawful DEI training. According to the technical guide, opposition to DEI related training such as unconscious bias training may constitute protected activity, if the allegations are supported by facts that specify the basis for the belief that the training violates Title VII. Again, no details were provided about training that would violate Title VII.

Best Practice for Operating Programs Without Violating Federal Anti-discrimination Laws

1. Preferences based on race, sex, or other protected characteristics, in the context of employment decisions and policies have been and remain unlawful. Numeric targets or quotas for recruiting, hiring, promoting, mentoring, training, or internships, or for supplier diversity programs are unlawful preferences to the extent the targets or quotas are based on race, sex, or a protected characteristic. Gender and race conscious programs should be restructured and based on criteria other than protected characteristics.
2. Develop policies and programs that promote unity among all employees by focusing on and offering opportunities that are available and accessible to all employees to develop the skills necessary for advancement in the workplace.
3. Continue to extend outreach for recruitment to reach a broad range of applicants to identify the most qualified applicants for the job, including institutions or groups that may be dedicated to applicants of a specific race or gender. The key is to include all groups from a variety of backgrounds, including race and sex, and not disregard or neglect groups in the search for qualified candidates and top talent, as opposed to targeting a specific group based on a specific race or sex.
4. Ensure that minimum and preferential criteria is standardized and used for evaluating candidates and employees in personnel decisions. Consider using panel interviews to ensure fair and objective personnel decisions for hiring and promotion. Remember to provide reasonable accommodations to applicants to provide accessible recruitment, as needed. Document personnel and compensation decisions with the use of disposition codes, a best practice that federal contractors should continue to use despite the revocation of Executive Order 11246.
5. Understand and create a policy on the purpose and inclusivity of the ERG and affinity group programs. Further ensure the groups are open, inclusive, and supportive. The idea is to create unity among the workforce.
6. Continue to be proactive in preventing discrimination based on race, color, sex, national origin, and religion as well as other protected characteristics, such as age, disability and veteran status and those protected characteristics identified by state laws. Failure to implement employment policies, procedures, and trainings to address or prevent unlawful discrimination will increase the risk of unlawful discrimination and liability for the employer.
7. Invest the time and resources in an attorney-client privileged review and assessment of current hiring practices and DEI policies and practices to ensure they are operated in compliance with federal anti-discrimination laws, as described in this section. The review should include internal and external facing documents, policies, programs, and communications. Make the required changes and train HR and DEI teams, including, other department personnel that implement the programs, on lawful practices, and policies.
8. For multi-state employers, outside counsel can assist with ensuring alignment of policies and programs with multiple state and federal laws. Some state AGs may also be receptive to launching state investigations into DEI programs.

The risk of complaints and government investigations of employers has increased as a result of Administration’s emphasis on DEI and their outreach to employees and stakeholders to scrutinize employer policies and practices. The technical guidance encourages whistleblowers, increasing the pressure on employers to ensure that policies and programs are effectively implemented and administered lawfully.

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