EEOC and DOJ Issue Guidance on Diversity, Equity and Inclusion | Hinckley Allen

On March 19, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) released two “technical assistance documents” for the purpose of “educating the public about unlawful discrimination related to ‘diversity, equity, and inclusion’ (DEI) in the workplace.” These documents, though targeted at workers, provide guidance to employers on what the new administration considers illegal DEI programs. They include a single-page handout entitled “What To Do If You Experience Discrimination Related to DEI at Work” and a longer, question-and-answer document entitled “What You Should Know About DEI-Related Discrimination At Work.” Together, they provide a measure of clarity following the administration’s issuance of multiple executive orders (EOs) relating to DEI programs and initiatives and confirm that, subject to limitations, DEI-related programs, practices, and policies may lawfully exist, despite the broad language of the administration’s prior EOs.

The technical assistance documents, which do not have the force of law, broadly outline for employers that “an employment action motivated – in whole or in part – by an employee’s race, sex, or another protected characteristic” may be unlawful. The documents are premised on Title VII of the Civil Rights Act of 1964, which was originally signed into law by President Lyndon B. Johnson alongside Martin Luther King, Jr., and prohibits discrimination based on various protected characteristics, such as race and sex.

The DOJ and EEOC identify several types of actions that may be considered “DEI-related discrimination,” including:

• Unlawfully using quotas or “balancing” a workforce by race, sex, or other protected traits.
• Disparate treatment against individuals – including applicants and employees – in the terms, conditions, or privileges of employment. Some examples of these include:
  • Making decisions relating to hiring, firing, demoting, promoting, compensating, and selecting for interviews or placement on a candidate slate or pool based on protected characteristics.
  • Limiting employees’ access to or excluding them from training, which includes leadership programs, based on protected characteristics.
  • Limiting or excluding employees from sponsorship, mentorship, or networking programs based on protected characteristics.
  • Limiting access or excluding employees or applicants from internships or fellowships, such as diversity fellowships, based on protected characteristics.
• Segregating, limiting, or classifying individuals into groups based on protected characteristics, including employee resource groups (ERG) or affinity groups that are limited to specific identities, or separating individuals into groups for training or workplace programming, “even if the separate groups receive the same programming content or amount of employer resources.”
• Harassment or the creation of a hostile work environment through actions that include subjecting employees “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 of employment” or engaging in actions “so frequent or severe that a reasonable person would consider it intimidating, hostile or abusive.”
  • The technical assistance documents contemplate that “[d]epending on the facts, DEI training may give rise to a colorable hostile work environment claim.” While this statement remains unclear, recent similar guidance from another agency (the Department of Education, interpreting Title VI) has detailed that this may include requiring individuals to participate in privilege walks, segregating them by race for presentations and discussions with guest speakers and mandating orientation programs or trainings that are designed to emphasize and focus on racial stereotypes.
• Retaliating against an employee or applicant for engaging in reasonable opposition to “employment discrimination related to DEI, participating in employer of EEOC investigations, or filing an EEOC charge.”
  • The technical assistance documents note that “[r]easonable 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.”

This guidance highlights the need for employers to closely examine their internal practices. The EEOC explicitly recommended in their technical assistance documents that employers provide “training and mentoring that provides workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascend to upper-level jobs.” It also recommends that “employees of all backgrounds . . . have equal access to workplace networks.” The documents emphasize that Title VII’s protections apply to all workers, not only those who are part of a historically underrepresented or minority group. These documents warn employers that they cannot use “business necessity” or an interest in diversity as a defense against a claim of intentional discrimination.

What Does This Mean for Employers?

The DEI EOs and the technical assistance documents make clear that the current administration intends to aggressively enforce anti-discrimination laws against public and private employers that it perceives as engaging in “illegal DEI.” Employers should, if they have not already, perform privileged audits of their DEI programs, policies, practices, and procedures. This review should use the technical assistance documents to better understand what the Trump Administration considers to be illegal DEI while keeping in mind that the current administration does not consider all forms of DEI and its related initiatives to be illegal. The law has not changed – the same actions that were illegal before January 20, 2025, remain illegal. In particular, the documents confirm that DEI-related programs, policies, initiatives, or practices may be lawful under Title VII, provided that an employer is not “taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.” Employers must ensure that their DEI programs are open to all employees, are not segregating employees or applicants, and are not otherwise limiting access to benefits of employment – such as training, fellowships, affinity groups, or opportunities for career development – either entirely or in part because of an individual’s protected characteristics.

This is a quickly shifting and evolving area. Companies need to continue to monitor this and other actions from the current administration and consult with legal counsel to ensure their programs are compliant with the law.