On March 19, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) released two technical assistance documents related to “diversity, equity, and inclusion” (DEI) in the workplace.
The agencies opined that because Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on protected characteristics such as race and sex, certain DEI initiatives, policies, programs, or practices may be unlawful if they involve taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.
The stated intent of the guidance is “to help educate the public about how well-established civil rights rules apply to employment policies, programs, and practices—including those labeled or framed as DEI.” The EEOC and the DOJ today released a joint one-page technical assistance document entitled, “What To Do If You Experience Discrimination Related to DEI at Work.” This document restates the process for filing charges of discrimination with the EEOC.
The EEOC also released a longer question-and-answer technical assistance document, “What You Should Know About DEI-Related Discrimination at Work.” This guidance is more detailed and provides information to employees not in a protected class on how to recognize when a DEI program may be “illegal” or may have caused them harm. Two noteworthy provisions are referenced in part as follows:
Q. When is a DE Iinitiative, policy, program, or practice unlawful under Title VII?
A. Under Title VII, an employer initiative, policy, program, or practice may be unlawful if it involves an employer or other covered entity taking an employment action motivated—in whole or in part—by race, sex, or another protected characteristic.
Among other things, Title VII bars discrimination (“disparate treatment”) against applicants or employees in hiring, firing, compensation, or any term, condition, or privilege of employment. …
Title VII also 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. This prohibition applies to employee activities which are employer-sponsored (including by making available company time, facilities, or premises, and other forms of official or unofficial encouragement or participation), such as employee clubs or groups. In the context of DEI programs, unlawful segregation can include limiting membership in workplace groups, such as Employee Resource Groups (ERG), Business Resource Groups (BRGs), or other employee affinity groups, to certain protected groups.
Unlawful 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.
Employers instead 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.” Employers also should ensure that “employees of all backgrounds . . . have equal access to workplace networks.”
Q. Can an employer’s DEI training create a hostile work environment?
Title VII prohibits workplace harassment, which may occur when an employee is subjected to unwelcome remarks or conduct based on race, sex, or other protected characteristics. Harassment is illegal when it results in an adverse change to a term, condition or privilege of employment, or it is so frequent or severe that a reasonable person would consider it intimidating, hostile, or abusive.
A. Depending on the facts, an employee may be able to plausibly allege or prove that a diversity or other DEI-related training created a hostile work environment by pleading or showing that the training was discriminatory in content, application, or context. In cases alleging that diversity trainings created hostile work environments, courts have ruled in favor of plaintiffs who present evidence of how the training was discriminatory (for example, in the training’s design, content, or execution) or, at the motion-to-dismiss stage, who make plausible allegations that explain how the training was discriminatory.
EEOC Acting Chair Andrea Lucas is quoted as saying “Far too many employers defend certain types of race or sex preferences as good, provided they are motivated by business interests in ‘diversity, equity, or inclusion.’ But no matter an employer’s motive, there is no ‘good,’ or even acceptable, race or sex discrimination.”
“The Department of Justice is committed to ending illegal DEI initiatives, policies, and programs,” said Deputy Attorney General Todd Blanche. “The technical assistance document provides clear information for employees on how to act should they experience unlawful discrimination based on DEI practices.”
What does this mean for your workplace initiatives and practices?
- Adhere to the plain meaning of the law and do not discriminate based on any protected characteristic.
- Avoid training or other programs which exclude any racial, ethnic, or other group such as Women’s Leadership Programs or segregated affinity groups.
- Be welcoming and tolerant of all, which is of course the message of DEI.
- Hire and promote based on merit which can and should include training, education, and experience.
If you would like to have a conversation about your initiatives, contact us at charla@charlastevensconsulting.com.