The Trump Administration’s recent targeting of “diversity, equity, and inclusion” (DEI) initiatives in the workplace has left many employers both in the public and private sectors with uncertainty and unease regarding the scope of executive orders prohibiting “illegal DEI” and how they impact their diversity programming. Although the term “illegal DEI” has been discussed at length by the Trump Administration, it had remained undefined until March 19, 2025. On that date, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) jointly released guidance on how DEI initiatives can constitute unlawful discrimination under Title VII and the protections and recourse available to employees. The EEOC and DOJ released a joint one-page technical assistance document titled “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.” These guidance documents are aimed at helping employees know their rights and helping employers take action to avoid conduct that is now considered unlawful DEI-related discrimination by those agencies responsible for enforcing anti-discrimination legislation.

The guidance first acknowledges that DEI is a broad term that is not defined by statute, but states that DEI policies, programs or practices may be unlawful under Title VII – the federal law that prohibits discrimination in employment on the basis of race, color, sex, gender and religion – “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.” Discrimination may occur if race, sex or another protected characteristic is just one deciding factor, not the sole deciding factor, in an employment decision. This does not just cover conduct such as using diversity-based quotas, but includes disparate treatment; limiting, segregating and classifying employees; harassment; and retaliation.

Disparate Treatment

Disparate treatment under DEI refers to discriminating against applicants or employees in the terms, conditions or privileges of employment. Notably, the EEOC includes in its list of examples:

• 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); and
• selection for interviews, including placement or exclusion from a candidate “slate” or pool.

Limiting, Segregating and Classifying Employees

The EEOC and DOJ guidance also advises that Title VII prohibits employers from “limiting, segregating, or classifying employees based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities.” This includes limiting membership to Employee Resources Groups – groups that typically provide professional growth training, networking and mentoring opportunities for minorities in the workplace – or other employee affinity groups or separating employees into groups based on protected characteristics when administering DEI or other training, even if the same programming content is offered to all groups. Employers should ensure that “employees of all backgrounds have equal access to workplace networks.”

Harassment

According to the guidance, DEI training now can also constitute unlawful harassment in violation of Title VII. The EEOC and DOJ notably state that DEI training can give rise to a colorable hostile work environment claim by pleading that the training was discriminatory in content, application or context.

Retaliation

Title VII prohibits employers from retaliating against an employee because he or she engaged in protected activity under the statute. Under EEOC and DOJ guidance, reasonable 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 EEOC Q&A document provides an overview of who is covered under Title VII and the administrative process of bringing a Title VII claim. The EEOC Q&A additionally clarifies that Title VII protections do not apply just to individuals who are part of a minority group but instead apply equally to all workers, and the EEOC does not require a higher burden of proof for “reverse” discrimination claims. The EEOC also cautions that an employer cannot justify its DEI initiatives as a business necessity, interest in diversity or customer/client preference.

Takeaway

Through these technical assistance documents, the EEOC and DOJ have attempted to define “illegal DEI” and explain the contours of prohibited DEI programming. Employers should use these guidelines when considering whether to reevaluate their current DEI programs and determine if they are consistent with the EEOC/DOJ’s definition. Although it is clear that the Trump Administration intends to pursue aggressive enforcement against public and private employers that it believes engage in illegal DEI, employers do not need to respond by completely dismantling their DEI programming. For example, Employee Resource Groups do not appear to violate Title VII so long as membership and opportunities are open to all employees. Even if scaling back DEI programs, employers should ensure there are alternative measures in place that address workplace discrimination and equity. Even with this guidance, there are still many gray areas that remain, and it is unclear if courts will interpret Title VII consistent with these EEOC guidelines. Employers should work with legal counsel to carefully review their DEI, training and mentoring activities and follow any updates on the legal challenges to Trump’s DEI-related executive orders.