Just days after the U.S. Court of Appeals for the Fourth Circuit stayed a preliminary injunction blocking executive orders that refer to the promotion of diversity, equity, and inclusion as “illegal DEI,” the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) jointly announced new guidance with a stated purpose of “educating the public about unlawful discrimination related to ‘diversity, equity, and inclusion’ (DEI) in the workplace.” 

EEOC and DOJ Guidance

On March 19, 2025, the EEOC and the DOJ announced the release of two technical assistance documents. One of these was a single-page document issued jointly by both agencies, titled What To Do If You Experience Discrimination Related to DEI at Work (the “Joint Document”). This Joint Document is also provided as a downloadable poster with a scannable QR code that directs users to the EEOC’s web page explaining how to file a Charge of Discrimination (“Charge”).

The EEOC also released What You Should Know About DEI-Related Discrimination at Work, a list of 11 questions and answers (the “Q&A”). Many of the answers in the Q&A address procedural questions that apply to any claim of discrimination, harassment, or retaliation, including when and how to file a Charge. Within its explanations, the Q&A makes the following key points:

The EEOC Does Not Recognize “Reverse” Discrimination

As outlined in the Q&A, the EEOC emphasizes that the protections of Title VII of the Civil Rights Act of 1964 (“Title VII”) do not apply only to individuals who are part of a “‘minority group . . ., women, or some other subset of individuals[.]’” Rather, “Title VII’s protections apply equally to all workers” (Q&A 4).

Reflecting the position taken by the plaintiff in Ames v. Ohio Department of Youth Services, a case currently pending before the U.S. Supreme Court (as discussed briefly here), the EEOC states that “there is no such thing as ‘reverse’ discrimination; there is only discrimination.” Accordingly, the EEOC confirms that it “does not require a higher showing of proof for so-called ‘reverse’ discrimination claims.”

Note that the term “reverse discrimination” has been used in many cases, including Ames, and in EEO treatises to refer to claims where white or male or heterosexual employees allege discrimination by an employer, and courts in some federal circuits have held that such “majority” plaintiffs must show a heightened standard of proof— specifically, “background circumstances” to support that their employer is the “unusual” one that discriminates against majority group members. The future of this heightened standard of proof in the courts is the central issue of Ames, and the EEOC is now clearly rejecting it.

DEI Could Lead to Discriminatory Disparate Treatment

At Q&A 7, the EEOC explains that DEI-related disparate treatment can occur in all manner of terms, conditions, or privileges of employment, including, but not limited to, the following:

• “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)”;
• “Selection for interviews” (including diverse slate programs); and
• “Job duties or work assignments.”

As the Q&A notes, and as our colleagues explained here, a plaintiff need only show “some injury” or “some harm” in order to establish a Title VII violation under Muldrow v. St. Louis.

Affinity Groups Could Be Likened to Segregation

The EEOC uses Q&A 7 to warn that Employee Resource Groups, Business Resources Groups, or other affinity groups may constitute unlawful segregation if employers limit membership to those groups. Therefore, employers should provide training, mentoring, and workplace networking opportunities to workers of “all backgrounds.” The guidance emphasizes that employers cannot take employment action based on race, sex, or another protected characteristic because the employer has a business necessity or interest in “diversity.” Relatedly, client or customer preference for diversity is not a defense to race or color discrimination.

Q&A 9 offers a bottom line: “Title VII does not provide any ‘diversity interest’ exception to these rules.”

DEI Training Could Lead to a Hostile Work Environment Claim

Q&A 10 suggests that, in certain circumstances, “an employee may be able to plausibly allege or prove that a diversity or other DEI-related training created a hostile work environment by pleading or showing that the training was discriminatory in content, application, or context.” Interestingly, this advice cites to the EEOC’s amicus brief in Vavra v. Honeywell Int’l., Inc., a 2024 case from the U.S. Court of Appeals for the Seventh Circuit in which a panel held that an employer did not violate Title VII when it terminated an employee who had refused to participate in DEI training. That brief not only cited to two cases where a plaintiff succeeded in demonstrating harassment by presenting evidence of how a DEI training created a hostile work environment, but also cited to three cases where the plaintiffs failed to demonstrate that harassment occurred, concluding that “the mere fact that an employer requires employees to participate in an anti-discrimination training is not enough to show that the training falls into a category of conduct prohibited by Title VII.”

What Employers Should Do Now

It bears repeating that the law under Title VII has not changed, and preferential or otherwise discriminatory employment practices remain unlawful. Indeed, both the EEOC and the DOJ, in their identically worded press releases, acknowledge that “DEI is a broad term that is not defined” in Title VII.

Nevertheless, the release of the Joint Document and the Q&A, along with other recent EEOC actions, show that the federal administration is serious about the executive orders that called for the elimination of “illegal DEI” as a new enforcement priority, despite judicial criticism. Although the EEOC’s authority to investigate DEI initiatives has been questioned in certain circumstances, this recent guidance invites individuals and organizations to pursue DEI-related Charges with the agency. 

Employers may want to consider how to balance the advantages of DEI programs against the heightened enforcement focus on such initiatives. We recommend the following initial steps:

• Conduct an inventory of all current DEI programs and evaluate the programs against the Joint Document and the Q&A.
• Determine whether eligibility for existing DEI programs can or should be amended, including whether participation should be open to all employees.
• Consider altering or discontinuing any programs that give preference to individuals within any protected group.
• Prepare a privileged, legal justification for the continuation of any DEI programs.