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. To get a better understanding of the EEOC’s interpretation of “DEI-related discrimination,” review these collective highlights from the documents.
When Are DEI Initiatives Unlawful?
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[.]”
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.
What Else Do I Need to Know?
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
In light of the EEOC’s guidance, employers should take the following steps:
- Conduct privileged 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.
If you have any questions related to the EEOC’s guidance, or need assistance reviewing your DEI policies, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100 or 619.292.0515.