The Equal Employment Opportunity Commission (“EEOC”) and U.S. Department of Justice (“DOJ”) are the latest federal agencies to weigh in on the Trump Administration’s efforts to crack down on unlawful Diversity, Equity, and Inclusion (“DEI”) programs in the workplace. On Wednesday March 19, 2025 the EEOC released via nationwide email a notice titled: “EEOC and Justice Department Warn Against Unlawful DEI-Related Discrimination”, and subtitled “Employers’ DEI Policies, Programs and Practices Can Violate Title VII of the Civil Rights Act of 1964.”
The EEOC notice references and links to the following two “technical assistance” documents it published in conjunction with the DOJ, which are intended to advise employers regarding the federal agencies’ views on the lawfulness of DEI programs that require or allow the use of sex, race or any other protected category as a factor in decisions affecting terms and conditions of employment. The technical assistance documents consist of:
Acknowledging that the term “DEI” is a broad term that is not defined under Title VII, the guidance documents reiterate the federal enforcement agencies’ previously announced positions that the use of race, sex or any other protected category “in whole or in part” is forbidden when making decisions affecting terms and conditions of employment.
In the release, Acting EEOC Chair Andrea Lucas warned that the agency broadly sees potential “serious implications for some very popular types of DEI programs” that have not been vetted to ensure that protected characteristics do not limit or categorize employees, or affect or motivate employment decisions, regardless of the “good motives” often underlying such programs.
Employers that operate DEI programs should review and familiarize themselves with the EEOC and DOJ technical assistance documents to consider whether their DEI programs may pose a risk based on the legal interpretation of that the enforcing agencies outline in the guidance documents.
