DOJ and EEOC Issue Guidance Regarding “Unlawful DEI-Related Discrimination”

On March 19, 2025, the US Department of Justice (“DOJ”) and US Equal Employment Opportunity Commission (“EEOC”) issued a joint press release announcing two technical assistance documents addressing diversity, equity, and inclusion (“DEI”) programs in the workplace.

The first document, “What To Do If You Experience Discrimination Related to DEI at Work,” was jointly issued by the DOJ and EEOC. The second document, issued by the EEOC, “What You Should Know About DEI-Related Discrimination at Work,” is structured as a longer and more detailed question-and-answer document. These technical assistance documents explain how workers and employers can identify workplace discrimination related to DEI initiatives, clarify existing protections under Title VII of the Civil Rights Act of 1964, and describe what steps employees can take to file a discrimination claim with the EEOC. Although these technical assistance documents are not binding and do not establish new legal rights, they nonetheless provide insight into the EEOC’s current views regarding the application of anti-discrimination laws to DEI in the workplace. Indeed, the EEOC and DOJ’s asserted purpose for issuing these technical assistance documents is to “help educate the public about how well-established civil rights rules apply to employment policies, programs and practices – including those labeled or framed as ‘DEI.’”

At the outset, the technical assistance documents explain that while DEI “is a broad term that is not defined” in Title VII, an employer’s DEI practices “may be unlawful” if the employer takes action that is “motivated” in whole or in part by an employee’s or prospective employee’s race, sex, or other protected characteristic. The EEOC goes on to describe its application of Title VII principles to DEI-related activities, as summarized below.

Title VII Applies to All Workers Equally

The new guidance emphasizes the “long-standing position of the EEOC and the Supreme Court” that Title VII’s protections against discrimination apply equally to all workers, and is not limited to individuals who are part of a “minority” group or any other subset of individuals. The EEOC states that “there is no such thing as ‘reverse’ discrimination; there is only discrimination” and that the EEOC applies the same standard of proof to all discrimination claims, regardless of whether the person asserting the claim is part of a majority or minority group with respect to the protected characteristic in question.

In February 2025, the issue of the evidentiary standard of proof for “reverse” discrimination claims was argued before the Supreme Court in the case titled Ames v. Ohio Department of Youth Services (Case No. 23-1039). Although the ruling has not yet been issued, it appears most likely that the Court will hold that plaintiffs in what are commonly referred to as “reverse” discrimination claims are subject to the same evidentiary burden as plaintiffs who are members of minority groups—and will not be held to a higher standard.

Examples of DEI-Related Discriminatory Practices

The EEOC guidance explains that “[i]n addition to unlawfully using quotas or otherwise ‘balancing’ a workforce” by protected characteristics,” DEI-related practices in the workplace can violate Title VII’s prohibition against disparate treatment of employees and applicants based on protected characteristics in the terms, conditions or privilege of employment, including:

• Hiring and firing;
• Promotion and demotion;
• Compensation;
• Fringe benefits;
• Access to or exclusion from training, leadership development programs, mentorship, sponsorship programs, or networking opportunities;
• Exclusion from internships and fellowships;
• Selection of individuals for interviews, “including placement or exclusion from a candidate ‘slate’ or pool;” and
• Assignment of job duties or work tasks.

The EEOC guidance further explains that Title VII bars employers from “limiting, segregating, or classifying” employees or prospective employees based on protected characteristics in a way that deprives workers of employment opportunities. The EEOC provides the following examples of potentially discriminatory classification or segregation:

• Offering employer-sponsored activities only to certain groups of workers
• Restricting access to company facilities or premises based on protected characteristics
• Limiting membership in employee clubs or groups, such as affinity groups or employee resources groups, to certain protected groups
• Separating employees into groups based on sex, race, or other protected characteristics when conducting any trainings or workplace programs, even if the separate groups receive the same programming content or amount of employer resources.

Use of DEI-Related Considerations as a Contributing Factor is Impermissible

The EEOC guidance provides that an employment decision can be discriminatory under Title VII if DEI-related considerations of race, sex, or another protected characteristic are a factor in the decision even if such considerations are not the exclusive or deciding factor for the action. Accordingly, even if a Title VII protected characteristic was one factor among other factors contributing to the employee’s decision or action, the action can be unlawful.

No “Business Necessity” Exception for DEI Initiatives

The EEOC’s guidance states that there is no “business necessity” exception to Title VII’s bar on employment actions motivated by protected characteristics. Accordingly, an employer cannot cite client or customer preference as a defense to 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.” Additionally, the EEOC states that Title VII “does not provide any ‘diversity interest’ exception to these rules,” and that neither the EEOC or the Supreme Court have ever found “general business interests in diversity and equity (including perceived operational benefits or customer/client preference)” sufficient to allow race-motived employment actions.

Hostile Work Environment & DEI Training

The EEOC guidance reiterates the existing standard for workplace harassment and hostile work environment claims: prohibited harassment occurs when an employee is subjected to unwelcome remarks or conduct based on race, sex, or other protected characteristics, and a hostile work environment exists if the harassment is so severe, pervasive, or frequent that a reasonable person would consider it to be intimidating, hostile, or abusive.

The new guidance states that, depending on the facts, DEI training may give rise to a credible hostile work environment claim. Such claims may succeed if the plaintiff shows that the DEI-related training “created a hostile work environment” because it was “discriminatory in content, application, or context.” The technical assistance documents do not provide guidance as to what specific facts or training elements might meet this standard.

However, a number of court decisions in recent years have addressed this topic. For example, in Young v. Colorado Department of Corrections, the Tenth Circuit Court of Appeals held that “race-based training programs can create hostile workplaces when official policy is combined with ongoing stereotyping and explicit or implicit expectations of discriminatory treatment.” The Court explained that the “rhetoric” of such training programs can set the stage for actionable misconduct in the workplace, if the “explicitly race-based implications of the training” manifest themselves in the day-to-day work environment in a manner that compromises employment opportunities and workplace cohesion – for example, due to a pattern of race-based intimidation, ridicule, or insult by co-workers or supervisors.

Protection of Employees Who Oppose Unlawful Discrimination

Finally, the EEOC’s new guidance reminds employers that they are prohibited from “retaliating” against employees who oppose unlawful DEI practices in light of Title VII’s prohibition on retaliating against employees who participate in “protected activity.” For example, the EEOC’s stance is that an employee’s opposition to DEI training may constitute protected activity if the employee provides a “fact-specific basis for his or her belief that the training violates Title VII.”

Conclusion

These newly issued guidelines provide useful insight as to the types of DEI-related activities the EEOC currently considers to be unlawful and may focus on for enforcement purposes. Employers should evaluate their DEI policies and programs, including diversity training and employee resource groups, to ensure compliance with Title VII and other federal, state and local anti-discrimination laws and requirements that can be enforced by the EEOC, private litigants and other government agencies.

Mayer Brown is available to help employers successfully develop, implement, and defend lawful inclusion, nondiscrimination and other DEI-related policies and programs and to advise on practical risks and actions that employers can take.