EEOC Issues Guidance On What Constitutes "Illegal DEI".
What is unlawful DEI?
On March 19, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) issued two technical assistance documents providing guidance on unlawful discrimination related to diversity, equity, and inclusion (DEI) in the workplace. The first document (What To Do If You Experience Discrimination Related to DEI at Work), issued jointly with the U.S. Department of Justice, clarifies when DEI policies and practices may be unlawful under Title VII. The second document (What You Should Know About DEI-Related Discrimination at Work), issued solely by the EEOC, describes the application of Title VII to DEI initiatives with examples of unlawful DEI policies and practices.
The guidance clarifies that DEI initiatives violate Title VII only when employers take employment actions motivated – in whole or in part – by race, sex, or another protected characteristic; or limit, segregate, or classify employees based on race, sex, or other protected characteristics. This includes "using quotas or otherwise 'balancing' a workforce by race, sex, or other protected traits. Employers cannot excuse their DEI-related considerations of protected characteristics by arguing that the protected characteristic was not the sole or deciding factor for the employer's decision or employment. Unlawful discrimination exists even if a protected characteristic was just one factor among many contributing to the employer's decision or action.
How Might Unlawful DEI Initiatives Appear?
The guidance provides examples of unlawful DEI-related practices, including:
- Employee Resource Groups/Affinity Groups: Employer-sponsored groups that limit membership based on a protected characteristic.
- Workplace Opportunities: Training, workplace programming, or other privileges of employment that separate workers based on race, sex, or another protected characteristic, even if the separate groups receive the same content or resources.
- Hiring: Diverse slate requirements that place or exclude an individual from a candidate "slate" or pool.
- Assignments: Employment decisions that are based on the discriminatory preferences of a client or customer, except where religion, sex, or national origin is a bona fide occupational qualification that is "reasonably necessary" to the business' normal operation. The exception does not apply to race or color.
In addition to the guidance provided, employers should be aware of the following:
- DEI Training: The guidance states that, "[d]epending on the facts, DEI training may give rise to a colorable hostile work environment claim[,]" if an employee shows that "the training was discriminatory in context, application or content."
- Retaliation: The guidance states that "opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for [their] belief that the training violates Title VII."
- Filing Charges: The guidance notes that a charge of discrimination may be filed with the EEOC by a third-party on behalf of an aggrieved person, such as an organization. This departs from the traditional understanding that charges brought "on behalf of a person" generally cover parents, guardians, or others in similar standing.
Employer Takeaways
Based on the guidance, only forms of DEI that take race, sex, or other protected characteristics into account may be considered unlawful under Title VII. However, because the guidance opens the door for employees to file charges with the EEOC for DEI-related discrimination, employers should In light of the EEOC's guidance, employers should take the following steps:
- Review policies, programs, and practices to assess if any may conflict with the guidance. If your organization has affirmative action or DEI-related policies, programs, or practices, review for legal compliance to reduce the risk of reverse discrimination claims and lawsuits
- Conduct reviews of current or recent DEI programs, policies, and practices that may be implicated in the EEOC's guidance;
- Ensure that all employees have equal access to training, mentorship, and advancement opportunities; and
- Review additional takeaways on best practices to implement legally compliant DEI initiatives HERE.
Commentary by: Raylea Stelmach
Edited by:
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