On March 19, 2025, the Equal Opportunity Commission (“EEOC”) issued two assistance documents providing guidance on illegal diversity, equity and inclusion (“DEI”) in the workplace.  The two technical assistance documents are focused on educating the public about unlawful discrimination related to DEI in the workplace. 

The EEOC acknowledged that DEI is a broad term that is not defined in Title VII of the Civil Rights Act of 1964 and pointed out that Title VII prohibits employment discrimination based on protected characteristics such as race and sex. According to the EEOC, under Title VII, DEI initiatives, 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 or applicant’s race, sex, or another protected characteristic.

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, “What To Do If You Experience Discrimination Related to DEI at Work.” The EEOC also released a longer question-and-answer technical assistance document, “What You Should Know About DEI-Related Discrimination at Work.” Both documents are based on Title VII, existing EEOC policy guidance and technical assistance documents and Supreme Court precedent.

The guidance notes that the EEOC investigates charges of discrimination and can file a lawsuit on behalf of those alleging discrimination from a business or private employer or the Department of Justice can file a lawsuit under Title VII against state and local government employers based on an EEOC charge. The EEOC also explains DEI-related discrimination in your workplace might include the following:

• Disparate Treatment – DEI-related discrimination can include an employer taking an employment action motivated (in whole or in part) by race, sex, or another protected characteristic. 
• Limiting, segregating and classifying employees based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities. 
• Harassment which may occur when an employee is subjected to unwelcome remarks or conduct based on race, sex, or other protected characteristics.
• Retaliation by an employer because an individual has engaged in protected activity under the statute, such as objecting to or opposing employment discrimination related to DEI, participating in employer or EEOC investigations, or filing an EEOC charge. 

The guidance provides examples of when a DEI initiative, policy, program, or practice unlawful under Title VII. 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.

The prohibition against disparate treatment, including DEI-related disparate treatment, includes disparate treatment in: Hiring; Firing; Promotion; Demotion; Compensation; Fringe benefits; Access to or exclusion from training (including training characterized as leadership development programs); Access to mentoring, sponsorship, or workplace networking / networks; Internships (including internships labeled as “fellowships” or “summer associate” programs); Selection for interviews, including placement or exclusion from a candidate “slate” or pool; Job duties or work assignments.

Further, 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.

The guidance also provides that 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. 

Key Takeaways

It is advisable that employers conduct an audit of all DEI-related policies, programs and initiatives and identify and remediate policies and practices that have an unlawful disparate impact on current and prospective employees.  In addition, employers should ensure equal access to all aspects of employment and professional development.  As always, employers should ensure their DEIA policies comply with federal, state, and local laws.  Should you have any questions, please contact Ali Law Group.

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