EEOC and DOJ Issue Guidance on DEI-Related Discrimination

On March 19, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) issued joint guidance on illegal and discriminatory diversity, equity and inclusion (DEI) practices. The EEOC also issued frequently asked questions (FAQs) regarding DEI-related discrimination. The guidance provides some clarity as to the agencies’ position on what may constitute illegal DEI and offers steps employees may take to report violations.

Background

On Jan. 20, 2025, and Jan. 21, 2025, President Donald Trump issued executive orders (EOs) 14151 and 14173, respectively, which seek to terminate all illegal DEI mandates, policies, programs, preferences and activities. However, neither EO defines what practices or programs may constitute illegal DEI. The EEOC and DOJ guidance provides some clarity as to the agencies’ positions on illegal DEI.

Note: For discussion of these Executive Orders, and their current status, please see CEA’s February 27 article.

Overview of DEI-related Discrimination Guidance

Under Title VII of the Civil Rights Act (Title VII), employers with 15 or more employees may not discriminate on the basis of an individual’s protected trait (e.g., race, color, religion, sex or national origin). The EEOC FAQs and the EEOC and DOJ joint guidance state that DEI programs may be unlawful under Title VII if they are motivated, in whole or in part, by an employee’s protected trait. The guidance identifies specific instances of potential DEI-related discrimination in the workplace, including:

• Disparate treatment in employment actions (e.g., hiring; firing; compensation; access to training, mentoring or workplace networking; and selection for interviews, including inclusion in a candidate pool) that is motivated by a protected trait;
• Limiting, segregating or classifying employees based on a protected trait in a way that deprives them of employment opportunities (e.g., limiting membership in workplace groups, such as employee resource groups or affinity groups, to members of a particular protected class);
• Engaging in workplace harassment based on a protected trait (e.g., DEI training may constitute illegal harassment if it is so severe or frequent as to be intimidating, hostile or abusive); and
• Retaliating against employees who engage in protected activity (e.g., objecting to DEI-related discrimination, participating in an investigation or filing a charge).

The guidance further clarifies that unlawful discrimination occurs even if a protected trait is just one factor among several rather than the sole factor. Additionally, employers may not justify taking an employment action on the basis of a protected trait because they have a business interest in diversity, including a client or customer preference. Finally, the guidance provides steps employees may take to file a claim of discrimination with the EEOC.