EEOC and DOJ Issue Guidance on Discrimination Related to DEI under Title VII

The US Equal Employment Opportunity Commission (EEOC) and US Department of Justice (DOJ) issued two guidance documents on March 19, 2025 detailing their views on discrimination related to diversity, equity, and inclusion (DEI) initiatives and policies under Title VII. While the guidance documents are not legally binding, they provide welcome clarity to employers regarding the types of employment programs that the new administration believes may constitute “illegal DEI” under federal law and reinforce that not all DEI programs are unlawful.

The EEOC and DOJ guidance comprised a one-page flier titled What to Do if You Experience Discrimination Related to DEI at Work and another, longer guidance document titled What You Should Know About DEI-Related Discrimination at Work. Both documents explain that, in addition to “unlawfully using quotas or otherwise ‘balancing’ a workforce by race sex, or other protected traits,” DEI initiatives, policies, programs, or practices may be unlawful under Title VII if they involve the following:  

• Disparate treatment, e.g., “an employer or other covered entity taking an employment action motivated—in whole or in part—by race, sex, or other protected characteristic,” such as:
  • Limiting access to or excluding employees from training, including training characterized as leadership development programs, based on protected characteristics.
  • Limiting access to or excluding employees from mentoring, sponsorship, or workplace networking/networks based on protected characteristics.
  • Limiting access to or excluding applicants from internships, including internships labeled as fellowships or summer associate programs, based on protected characteristics.
  • Selecting applicants or employees for interviews, including placement or exclusion from a candidate slate or pool, based on protected characteristics.
• Segregating, limiting, or classifying workers “into groups based on race, sex, or another protected characteristic when administering DEI or any trainings, workplace programming, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources.”
• Harassment or a hostile work environment, e.g., “when an employee is subjected to unwelcome remarks or conduct based on race, sex, or other protected characteristics . . . result[ing] in an adverse change to a term, condition, or privilege or employment or . . . so frequent or severe that a reasonable person would consider it intimidating, hostile or abusive.” The guidance explains that, 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.”
• Retaliation against an employee or applicant because the individual engaged in reasonable opposition to employment discrimination related to DEI. The guidance notes that “reasonable opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for his or her belief that training violates Title VII.”

The release of these documents follows an order from the Fourth Circuit Court of Appeals on March 14 that lifted a nationwide injunction against enforcement of some aspects of Executive Order 14173, including the provision that orders federal agencies to add language to federal contracts and grants requiring recipients to affirm that they “do not operate any programs promoting DEI that violate any applicable Federal anti-discrimination law.”

This guidance offers federal contractors and grantees a window into the employment programs the government may view as “illegal DEI” under the terms of that affirmation. At least one other legal challenge against EO 14173 is still pending in the courts.   

KEY TAKEAWAYS FOR EMPLOYERS, FEDERAL CONTRACTORS, FEDERAL GRANTEES, AND PRIVATE-SECTOR ACTORS

The key takeaway from this guidance is that not all forms of DEI are considered by the administration to be “illegal” under Title VII. Only those practices that unlawfully take race, sex, or other protected characteristics into account will fall into that category. Employers should continue to review their DEI programs to ensure that they are not segregating employees or applicants or otherwise limiting access to or excluding individuals from trainings, fellowships, affinity groups, or development opportunities based on protected characteristics.

It is also useful to remember that, while these documents provide helpful clarity, they are not legally binding. EEOC and DOJ guidance represents the considered views of those agencies on the legal obligations created by Title VII and the case law interpreting it: they do not override prior court decisions.

Given the persistent uncertainty in this area, employers should continue to monitor developments closely and consult with legal counsel to ensure their programs are compliant with the law. Morgan Lewis is monitoring these developments and available to help guide employers in this area.   

STAY INFORMED

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