On March 19, the US Equal Employment Opportunity Commission (EEOC) and the US Department of Justice (DOJ) released two technical assistance documents focused on educating the public about “unlawful discrimination” related to diversity, equity, and inclusion (DEI) in the workplace.

The guidance follows several executive orders issued by the Trump Administration relating to DEI and comes at a time when many employers are struggling over what, if anything, to do with their DEI policies and programs.

The Joint Guidance

The EEOC and the DOJ jointly released a one-page technical assistance document aimed at educating the public about how well-established civil rights statutes like Title VII, the primary federal statute prohibiting discrimination in employment, apply to employment policies, programs, and practices — including those labeled or framed as “DEI.” Find the joint guidance document here.

The guidance states that under Title VII, DEI 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 race, sex, or another protected characteristic.” It further states that in addition to unlawfully using quotas or otherwise “balancing” a workforce by race, sex, or other protected traits, DEI-related discrimination in the workplace might include:

• Disparate treatment in the terms, conditions, or privileges of employment.
• Limiting, segregating, or classifying employees and applicants based on race, sex, or other protected characteristics.
• Harassment based on protected characteristics in DEI training.
• Retaliation against individuals who engage in “reasonable” opposition to DEI training.

The guidance observes that “Title VII protects employees, potential and actual applicants, interns, and training program participants.” It also advises individuals who think they “have experienced DEI-related discrimination” to file a charge with their local EEOC office.

The EEOC’s Guidance

The EEOC also released a longer question-and-answer technical assistance document. According to EEOC Acting Chair Andrea Lucas: “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.”

After advising private and federal employees to file charges of discrimination with the EEOC if they feel they have been a victim of DEI discrimination, the agency explains how it will evaluate such claims. Noteworthy points from the guidance include:

• Title VII’s protections apply equally to all workers, and not just “individuals who are part of a minority group” or are “historically under-represented.” Different treatment based on race, sex, or another protected characteristic can be unlawful discrimination, no matter which employees or applicants are harmed. 
• The EEOC does not require a higher showing of proof for so-called “reverse” discrimination claims. The EEOC’s position is that there is no such thing as “reverse” discrimination; there is only discrimination, which occurs when an employment action is motivated in whole or in part by race, sex, or any other protected characteristic. The EEOC applies the same standard of proof to all race discrimination claims, regardless of the victim’s race.
• Title VII protects not just employees, but also applicants and training or apprenticeship program participants. Title VII may also apply to interns who, depending on the facts, may be covered as employees, applicants, or training program participants.
• Among other things, Title VII 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 that are employer-sponsored (including where the employer makes available company time, facilities, or premises, and other forms of official or unofficial encouragement or participation). These activities can include employee clubs or groups, such as Employee Resource Groups or other employee affinity groups, where membership or participation is restricted to certain protected classes.
• 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.” This would preclude professional development or training programs that are intended to increase opportunities for advancement of members of historically under-represented groups.
• Employers cannot rely on client or customer preferences as a defense to race or color discrimination. Basing employment decisions on the racial preferences of clients, customers, or coworkers constitutes intentional race discrimination. Employment decisions based on the discriminatory preferences of clients, customers, or coworkers are just as unlawful as decisions based on an employer’s own discriminatory preferences.
• The Supreme Court has never found that general business interests in diversity and equity (including perceived operational benefits or customer/client preference) can justify race-motivated employment actions, nor has the EEOC.
• Depending on the facts, an employee may be able to plausibly allege that diversity or other DEI-related training created a hostile work environment if they show that the training was discriminatory in content, application, or context.
• Opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII.

The new guidance from the EEOC and DOJ makes clear that DEI-related activities will continue to be a significant enforcement priority, and it highlights the need for employers to audit their programs and policies to ensure that they do not run afoul of the principles described above. In particular, employers should take immediate steps to ensure they do not offer or support any training or professional development programs, internships, fellowships, or employee resource groups where membership or participation is limited only to members of a certain protected class. Although the guidance does not indicate that employers should abandon anti-discrimination or diversity training, it is recommended that employers review their training materials to ensure that they do not include any concepts that could arguably be construed as discriminatory.

Notably, the guidance does not expressly discuss any DEI activities that the EEOC or DOJ would find lawful. However, the guidance also does not suggest that employers are prohibited from engaging in efforts to recruit from a diverse applicant pool, so long as ultimate hiring decisions are based on the candidates’ qualifications.