On March 19, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) and U.S. Department of Justice (DOJ) published two technical assistance guides regarding the agencies’ views on what may constitute unlawful DEI-related discrimination at work.
Background
The new guidance is an enforcement response to President Donald Trump’s Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” issued on Jan. 21, 2025. The executive order, among other things, directed federal agencies to target perceived unlawful diversity initiatives in private and public employment for enforcement.
For a detailed summary of Executive Order 14173, see McGuireWoods’ Jan. 22, 2025, alert.
According to EEOC Acting Chair Andrea Lucas in a press release issued with the new guides:
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. … While the public may be confused about what rules apply to DEI, the law itself is clear. And there are some serious implications for some very popular types of DEI programs.
Guidance Details
The guidance consists of a one-page technical assistance document, “What To Do If You Experience Discrimination Related to DEI at Work,” issued jointly by the EEOC and the DOJ and a longer question-and-answer technical assistance document, “What You Should Know About DEI-Related Discrimination at Work,” issued by the EEOC.
The purpose of the guides is to “help employees know their rights and help employers take action to avoid unlawful DEI-related discrimination.” And both documents begin with a declaration about DEI generally, noting:
Diversity, Equity and Inclusion (DEI) is a broad term that is not defined in Title VII of the Civil Rights Act of 1964 (Title VII). Title VII prohibits employment discrimination based on protected characteristics such as race and sex. Under Title VII, DEI initiatives, 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 or applicant’s race, sex, or another protected characteristic.
The guides then go on to provide details regarding particular practices that EEOC and DOJ contend may cross the legal line.
- Disparate treatment examples noted include well understood prohibitions on hiring, firing, promotion, demotion, compensation and fringe benefits “motivated (in whole or in part) by race, sex, or another protected characteristic” as well as discrimination in:
- “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 placement or exclusion from a candidate “slate” or pool”
- “Job duties or work assignments”
- Segregation examples provided include:
- “Limiting membership in workplace groups, such as Employee Resource Groups (ERG) or other employee affinity groups, to certain protected groups”
- “Separating employees into groups based on race, sex, or another protected characteristic when administering DEI or other trainings, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources”
Other DEI practices and positions highlighted in the guides include:
- Customer preferences, stating, “client or customer preference is not 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.”
- DEI training, asserting, “Depending on the facts, 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.”
- Diversity business justifications overall, stating, “No general business interests in diversity and equity (including perceived operational benefits or customer/client preference) have ever been found by the Supreme Court or the EEOC to be sufficient to allow race-motivated employment actions.”
The extent to which the new technical assistance guides are later deemed to fully align to Title VII and other federal laws will be an issue for litigation and the courts. Regardless, the guides provide insight into the types of DEI activity that will likely be the focus of EEOC and DOJ enforcement over the next few years.
McGuireWoods continues to monitor the evolving legal and regulatory landscape regarding these guidance documents and the full set of executive orders and enforcement activity under the new administration.
For questions about the new guides and the implications on DEI initiatives generally, contact the authors, your McGuireWoods contact, or a member of the firm’s affirmative action, labor and employment or federal contracting teams.