On 19 March 2025, the US Equal Opportunity Commission (EEOC) and Department of Justice (DOJ) issued two technical assistance documents clarifying what workplace diversity, equity, and inclusion (DEI) programs and practices the federal agencies may consider to be “discriminatory.” Importantly, the federal government also has confirmed that DEI initiatives, policies, programs, or practices can lawfully exist. While the technical assistance documents are not binding, they serve as interpretive guidelines for enforcement agents and are expressly intended to “increase public awareness of how existing rules apply to DEI programs.”¹

Clarifying Meaning of DEI-Related Workplace Discrimination

Following multiple executive orders (EOs) from President Donald Trump pertaining to DEI, employers have awaited agency guidance to answer key questions regarding the scope and meaning of “illegal DEI”—an undefined concept in the EOs that has been the subject of multiple legal challenges.² Initial guidance now has been provided with the issuance by the EEOC and the DOJ of a one-page technical assistance document, “What To Do If You Experience Discrimination Related to DEI at Work” and a longer question-and-answer technical assistance document, “What You Should Know About DEI-Related Discrimination at Work” (Q&A) (together, Technical Assistance Documents).

In the publication titled, “What To Do If You Experience Discrimination Related to DEI at Work,” the EEOC provides information to individuals in the United States who believe they have “experienced discrimination related to DEI at work” in violation of Title VII of the Civil Rights Act of 1964 (Title VII). Employees, interns, applicants, and training or apprenticeship program participants who believe their rights have been violated under Title VII by private sector employers must exhaust their administrative remedies under Title VII by filing charges of discrimination with the EEOC.³ The publication specifically identifies the unlawful use of “quotas” and “balancing” of an employer’s workforce as examples of potential “DEI-related discrimination.” Further, it notes that individuals may have colorable hostile work environment claims related to DEI training if such training becomes “so frequent or severe that a reasonable person would consider it intimidating, hostile, or abusive.” The publication also notes that individuals may engage in legally protected conduct pursuant to Title VII if they are “objecting to or opposing discrimination related to DEI” or engaging in “reasonable opposition to a DEI training.” However, the EEOC did not provide further details as to the type or content of such trainings that may be unlawful.

In the Q&A, the EEOC confirms that DEI-related initiatives, policies, programs, and practices are lawful under Title VII as long as they do not 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 Q&A further emphasizes that Title VII’s protections apply to all workers, not only individuals who are part of a “minority group,” “diverse,” or “historically underrepresented group.” Moreover, workers or applicants not otherwise part of a minority group are subject to the same burden of proof as those in minority groups when asserting unlawful workplace discrimination claims. The Q&A also notes that, to allege a colorable claim of discrimination, workers only need to show “some injury” or “some harm” affecting their “terms, conditions, or privileges” of employment.⁴ 

According to the EEOC in the Q&A, “DEI-related disparate treatment” may include disparate treatment in the terms and conditions of employment (e.g., hiring, firing, work assignments, promotion, demotion, compensation, and fringe benefits), as well as disparate treatment in:

• Access to training (including leadership development programs);
• Access to mentoring, sponsorship, or workplace networking/networks;
• Internships/fellowships; and
• Selection for interviews, including placement or exclusion from a candidate “slate” or pool.

In line with prior statements by the EEOC’s Acting Chair Andrea Lucas, addressing “race-restricted internships” and “race-restricted mentoring,”⁵ the Q&A advises employers to offer “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.” It also notes that employees must ensure that “employees of all backgrounds... have “equal access to workplace networks.” 

The EEOC further cautions in the Q&A that an employer cannot justify taking an employment action based on race, sex, or another protected characteristic because the employer has a business necessity or interest in “diversity,” which includes client or customer preferences. The Q&A clarifies and reaffirms, however, that employers may raise a “bona fide occupational qualification” as an affirmative defense in very limited circumstances to excuse hiring or classifying employees based on religion, sex, or national origin.

The EEOC notes that affinity groups, sometimes called employee resource groups or (ERGs), may be problematic if they are not open to everyone or limit terms and conditions of employment to only certain members with certain protected characteristics. The EEOC underscores that 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 all “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.”

Key Takeaways for Employers

The Technical Assistance Documents do not materially alter the compliance landscape for employers or resolve all the unanswered questions regarding the permissible scope of private sector DEI programs. Instead, the Technical Assistance Documents provide some useful guidance to employers regarding the Trump administration’s interpretation of lawful and unlawful DEI initiatives, policies, programs, and practices and reflect the agencies’ enforcement priorities. 

As private employers prepare for increased DEI-related enforcement activity, they should consider, with assistance of counsel:

• Conducting internal audits of existing DEI initiatives, policies, programs, and practices, especially as related to recruitment, mentorship/sponsorship, training, and hiring;
• Restructuring or ending DEI internship and career development programs, including mentorship and networking programs, if such programs have eligibility criteria—as written or as applied—based on protected characteristics;
• Suspending “diverse slate” hiring practices and focusing instead on widescale recruiting to attract a large pool of applicants; and
• Reviewing the purpose and impact of employer-sponsored ERGs and ensuring that such groups are inclusive and open to everyone.

Conclusion

Employers in the United States should bear in mind that various state and local law requirements also impact the nature and content of many of their DEI-related initiatives, policies, programs, and practices. As the Technical Assistance Documents emphasize that Title VII’s protections apply to all workers, employers must ensure that they continue to comply with their nondiscrimination obligations to all personnel. Employers should work with counsel to ensure hiring and retention practices, equal employment opportunity policies, and DEI initiatives, policies, programs, and practices comply with applicable law in light of the updated enforcement guidance to reduce the risk of government investigation while maintaining compliance with applicable law. 

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