• The EEOC recently issued two documents to clarify what the Trump administration considers to be illegal DEI programs.
• According to these documents, discrimination may occur if race, sex, or another protected characteristic is just one deciding factor, not the sole deciding factor, in an employment decision.
• The guidance suggests employers should open all training and mentoring programs to all demographic groups.
• The guidance confirms that employee resource groups or affinity groups may be unlawful if they are not open to everyone.

On March 19, 2025, the EEOC released a technical assistance document called “What You Should Know About DEI-Related Discrimination at Work.” With the U.S. Department of Justice (DOJ), the EEOC also released a one-page document called “What To Do If You Experience Discrimination Related to DEI at Work.” These documents were issued on the heels of Executive Orders 14151 and 14173, aimed at “illegal” DEI initiatives in the federal government and private employment.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination and harassment based on race, color, sex, national origin, and religion, among other protected characteristics not listed in the technical assistance documents. In a Q&A format, the EEOC stated that an employer’s DEI policy, program, or practice may be unlawful under Title VII if it involves “taking an employment action motivated—in whole or in part—by race, sex, or another protected characteristic.” The EEOC stated that “DEI-related disparate treatment” could include disparate treatment in hiring, firing, promotion, demotion, compensation, and fringe benefits, as well as disparate treatment in:

• Access to or exclusion from training;
• Access to mentoring, sponsorship, or workplace networking/networks;
• Internships, including fellowships or summer associate programs; and
• Selection for interviews, including placement or exclusion from a candidate pool.

The EEOC advised 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. Employers also should ensure that employees of all backgrounds have equal access to workplace networks.” 

The EEOC cautioned employers that they cannot use general business interests, or customers’ and clients’ preferences, as a reason for treating employees disparately based on race, sex, or another protected characteristic. The EEOC recognized bona fide occupational qualifications provide lawful grounds for employment decisions in limited circumstances but do not otherwise make preference-based decisions lawful.

The EEOC noted that DEI training may create legal risk if the training is discriminatory in content, application, execution, or context.

Affinity groups, sometimes called employee resource groups, may be problematic, according to these EEOC guides, if they are not open to everyone or limit terms and conditions of employment to only certain members with certain protected characteristics. The EEOC stated, “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 employee activities that 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.”

Next Steps

The Trump administration’s executive orders on DEI in the workplace are being challenged in court. While it is too early to tell what the ultimate outcome of those cases will be, employers may wish to carefully review the two new technical assistance documents to understand the EEOC’s interpretations and likely enforcement activity. Furthermore, employers may wish to inventory their training and mentoring programs and other practices to determine if any of them conflict with the EEOC’s statement of the law and enforcement priorities.