Recent EEOC actions and guidance provide additional context regarding the Trump Administration Executive Orders targeting Diversity, Equity and Inclusion (“DEI”) and Diversity, Equity, Inclusion and Accessibility (“DEIA”) policies, programs, and mandates. The guidance clarifies when DEI initiatives might cross the line into unlawful discrimination under Title VII of the Civil Rights Act of 1964 (per the current EEOC). The new guidance also provides guideposts on how to review existing policies for compliance with the law and provides insight regarding programs the EEOC believes violate the recent executive orders.
As we wrote about here and here, the Trump Administration issued Executive Order 14173, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “J21 EO”). The day before, on January 20, 2025, the Administration had issued Executive Order 14151, titled “Ending Radical and Wasteful Government DEI Programs and Preferencing” (the “J20 EO”). Both executive orders took aim at DEI and DEIA policies, programs, and mandates. While there has been legal wrangling about whether portions of the Executive Orders are constitutional, the EEOC has continued to put out information on the type of DEI-related programs it considers to be unlawful discrimination.
EEOC Guidance
The EEOC has issued two guidance documents, one entitled “What To Do If You Experience Discrimination Related to DEI at Work” (“Guidance”) and a series of frequently asked questions titled “What You Should Know About DEI-Related Discrimination at Work” (“FAQs”). The Guidance and the FAQs clarify when, according to the EEOC, DEI initiatives might constitute unlawful discrimination under Title VII. Even though these documents are not a rule or a law, they are technical assistance documents issued by the EEOC that provide further information to employers that are in the process of reviewing their policies and programs to ensure they are acting consistent with existing law.
The Guidance first reiterates that under Title VII, DEI policies, programs, or practices may be unlawful if they involve an employer taking an employment action motivated by an employee’s race, sex, or other protected characteristic. It then provides examples of “DEI-related discrimination,” in addition to unlawfully using quotas or otherwise “balancing” a workforce by race, sex, or other protected traits, by category:
- Disparate Treatment – DEI-related discrimination can include employment action motivated (in whole or in part) by race, sex, or another protected characteristic. Title VII prohibits discrimination against applicants or employees in terms, conditions, or privileges of employment, including:
- Hiring, firing, promotion, demotion, compensation, fringe benefits, exclusion from training, exclusion from mentoring or sponsorship programs, exclusion from fellowships, and selection for interviews (including placement on candidate slates)
- Limiting, Segregating, and Classifying – Title VII prohibits employers from limiting, segregating, or classifying employees on the basis of race, sex, or other protected characteristics in a manner that affects their status or deprives them of employment opportunities. Prohibited conduct may include:
- Limiting membership in workplace groups (e.g., Employee Resource Groups or other employee affinity groups) to certain protected groups; and
- Separating employees into groups based on race, sex, or other protected characteristics when administering DEI or other trainings, or other privileges of employment, even if the groups receive the same programming or amount of resources.
- Harassment – “Title VII prohibits workplace harassment, which may occur when an employee is subjected to unwelcome remarks or conduct based on race, sex, or other protected characteristics. Harassment is illegal when it results in an adverse change to a term, condition or privilege of employment, or it is so frequent or severe that a reasonable person would consider it intimidating, hostile, or abusive.”
- “Depending on the facts, DEI training may give rise to a colorable hostile work environment claim.”
- Retaliation – Title VII prohibits retaliation by an employer against an individual who has engaged in protected activity under the statute, including objecting to or opposing employment discrimination related to DEI, participating in investigations, or filing an EEOC charge.
- “Reasonable opposition to a DEI training may constitute protected activity.”
The FAQ’s provide information regarding the procedural aspects of how individuals can seek redress for actions they believe may violate Title VII, such as filing a charge with the EEOC. Additionally, the FAQs state:
- Title VII’s protections apply equally to all workers; “[t]he EEOC does not require a higher showing of proof for so-called ‘reverse’ discrimination claims”; and “[t]he EEOC’s position is that there is no such thing as ‘reverse’ discrimination; there is only discrimination.”
- With respect to employer initiatives, policies, programs, or practices that may violate Title VII, the FAQs identify, among others: “[a]ccess to or exclusion from training (including training characterized as leadership development programs)”; “[a]ccess to mentoring, sponsorship, or workplace networking / networks”; “[i]nternships (including internships labeled as ‘fellowships’ or ‘summer associate’ programs)”; and “[s]election for interviews, including placement or exclusion from a candidate ‘slate’ or pool . . . .”
- When discussing Title VII’s prohibition against limiting, segregating, or classifying employees or applicants based on race, sex, or other protected characteristics, the FAQs provide, “This prohibition applies to employee activities which are employer-sponsored (including by making available company time, facilities, or premises, and other forms of official or unofficial encouragement or participation), such as employee clubs or groups,” and specifically state in the context of DEI programs, it “can include limiting membership in workplace groups, such as Employee Resource Groups (ERG), Business Resource Groups (BRGs), or other employee affinity groups, to certain protected groups.”
- “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.”
- “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.”
The EEOC has also provided guidance to those who believe that they have been subject to discrimination or harassment in connection with DEI initiatives. The Guidance specifically encourages individuals to contact the EEOC if they “suspect [they] have experienced DEI-related discrimination,” and the FAQs state, “courts have held that opposition to a 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.”
Next Steps for Employers
The Guidance further demonstrates the shift in the EEOC’s priorities after the Trump Administration’s Executive Orders. Employers should take note. Among other things, the EEOC’s Guidance suggests that employers seeking to ensure compliance with the Executive Orders should ensure that they are not excluding individuals of any particular race, sex, or other protected characteristic from training, mentoring, or sponsorship opportunities, fellowships, interviews, or workplace groups. Employers should also take stock of their policies and training programs given the Guidance’s indication that DEI training may give rise to hostile work environment claims and that “reasonable opposition” to DEI training could constitute protected activity.
