EEOC and DOJ Issue Joint Guidance on DEI-Related Discrimination
As discussed in our blog here, President Trump’s series of executive orders aimed at eradicating “illegal” diversity, equity and inclusion policies and programs across the federal government and in the private sector did not define the term “illegal discrimination.” On March 19, the Equal Employment Opportunity Commission and the Department of Justice released guidance addressing this and outlining how DEI practices may be unlawful under Title VII of the Civil Rights Act of 1964 if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.
Together, the EEOC and DOJ issued a joint one-page technical assistance document entitled “What To Do If You Experience Discrimination Related to DEI at Work,” providing examples of “DEI-related discrimination” under Title VII and directing employees who “suspect [they] have experienced DEI-related discrimination” to “contact the EEOC promptly.”
The EEOC simultaneously released more detailed guidance entitled “What You Should Know About DEI-Related Discrimination at Work,” which includes eleven questions and answers addressing the process for asserting a discrimination claim and the scope of protections under Title VII as they relate to DEI practices.
The Purpose of the Guidance
As described in the EEOC’s press release, the documents are designed “[t]o 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.’” While guidance documents are not legally binding, they provide insight into the government’s interpretation and enforcement of the law.
Key Takeaways from the Guidance
The “What You Should Know” document explains the process for bringing Title VII claims and discusses the scope of Title VII, including the categories of individuals it protects and the aspects of employment it governs.
It explains that Title VII applies equally to all workers, regardless of whether they are part of a “minority group.” It discusses “reverse discrimination” claims and references Ames v. Ohio Department of Youth Services (which is pending before the US Supreme Court), stating: “[t]he EEOC does not require a higher showing of proof for so-called “reverse” discrimination claims. The EEOC’s position is that there is no such thing as ‘reverse’ discrimination; there is only discrimination.” It also outlines actions that may amount to DEI-related disparate treatment including things like: access to or exclusion from training (including training characterized as leadership development programs); access to mentoring, sponsorship, or workplace networking or groups; and selection for interviews, including placement or exclusion from a candidate “slate” or pool.
It further provides that employers may not “justify taking an employment action based on race, sex, or another protected characteristic because the employer has a business necessity or interest in ‘diversity,’ including preferences or requests by the employer’s clients or customers.” This is because the business necessity defense is only available for disparate impact discrimination, not intentional discrimination. The only defense to intentional discrimination on the basis of religion, sex or national origin is that the protected category is a bona fide occupational qualification for the role. The EEOC explains that this limited defense is not available for intentional discrimination on the basis of race or color, and states that “business interests in diversity and equity” have never “been found by the Supreme Court or the EEOC to be sufficient to allow race-motivated employment actions.”
The “What to Do” document shares much of the same information and directs individuals who believe they have experienced “DEI-related discrimination” to contact the EEOC immediately.
Status of the DEI Executive Orders
As discussed here, on March 14, 2025, the Court of Appeals for the Fourth Circuit lifted the preliminary injunction blocking key provisions of the orders pending further appellate review.
Please contact a member of our team for more.
