E-Alerts

EEOC Guidance On DEI Initiatives Highlights Risks For Employers

August 26, 2025 by Anthony L. DeProspo, Jr.

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued two “technical assistance” documents intended to provide guidance to employers on diversity, equity, and inclusion (“DEI”) practices in the workplace. The documents align with several executive orders issued by President Trump in his first days in office, and explain the administration’s position on what it perceives to be illegal discrimination arising out of public and private sector DEI initiatives.

Technical Assistance Documents

The first technical assistance document, issued by the EEOC jointly with the Department of Justice, is titled What To Do If You Experience Discrimination Related To DEI At Work. This is a one-page document in the form of a workplace notice that would typically be enlarged in poster format and posted where employees congregate. This notice outlines the basics of federal anti-discrimination law (Title VII) and explains how certain DEI employment practices could be violative of Title VII. The document also provides contact information for the EEOC in the event an employee has questions about whether the employee has suffered DEI-related employment discrimination.

The second technical assistance document, which is far more expansive, is titled What You Should Know About DEI-Related Discrimination At Work and is presented in a “Q&A" format. This document summarizes specific DEI initiatives that the EEOC views as problematic (and possibly illegal).

Key points in this document include the following:

DEI is a broad term that is not defined in Title VII. Under Title VII, DEI initiatives may be unlawful if they involve an employment action or decision that is motivated, in whole or part, by an employee’s race, sex, or other protected characteristic.

Title VII’s protections do not apply only to individuals who are members of “minority groups” as that term historically has been used -- i.e., to racial or ethnic minorities, workers with non-American national origins, women, or other "diverse" employees. Discriminatory treatment based on race, sex, or another protected characteristic is unlawful regardless of which categories of employees are harmed.

Title VII does not require a higher showing of proof of so-called “reverse” discrimination. Indeed, reverse discrimination does not exist – there is only discrimination. The same standard of proof applies to all discrimination claims, regardless of the employee’s race or other protected classification. (The U.S. Supreme Court affirmed this principle in its recent Ames v. Ohio Dept. of Youth Services decision.)

Title VII does not protect only “employees” from DEI-related discrimination at work. Title VII has a broader reach, protecting applicants and training or apprenticeship program participants as well. Depending on the circumstances, Title VII also may apply to interns.

The prohibition against disparate treatment under Title VII, including DEI-related disparate treatment, applies to a wide variety of aspects of employment, including hiring, firing, promotions, demotions, and compensation.

Title VII also prohibits disparate treatment with regard to employee access to or exclusion from training or leadership development programs; access to mentoring, sponsorship, or workplace networking; internships; selection for interviews, including participation in or exclusion from an interview “pool”; and job duties or work assignments.

Title VII further prohibits employers from excluding employees on the basis of protected characteristics from employee activities that are employer-sponsored – including by making work time and/or facilities available to encourage official or unofficial participation.

Unlawful DEI segregation can include limiting membership or participation in workplace groups, such as employee resource groups, business resource groups, or other affinity groups, to certain protected categories. Employers should ensure that employees of all backgrounds have equal access to workplace networks.

For an employment action to be considered violative of Title VII, the protected characteristic does not have to be the “sole” reason for the employment action or the “but-for” factor for the action. An employment action violates Title VII even if the protected characteristic was just one factor among others contributing to the employer’s decision.

Client or customer preference or interest in “diversity” is not a defense to a claim of race or color discrimination. Discriminatory employment decisions based on client or customer preference are just as unlawful as those based on an employer’s own diversity interests. Indeed, Title VII provides no “diversity interest” exception to its prohibition on discrimination.

An employee may be able to allege or prove a hostile work environment based on an employer’s DEI-related training or implementation of DEI initiatives. Title VII prohibits employers from retaliating against employees who oppose DEI efforts on the grounds that such efforts are discriminatory in nature.

The second technical assistance document also provides guidance on how to bring a claim against an employer before the EEOC, emphasizing that a charge must first be filed with the EEOC before an employee can assert Title VII claims in federal court.

This document also describes the different paths an employee must take to bring Title VII claims, depending on whether the employer is in the public or private sector.

Recommendations For Employers

Legal challenges to employer DEI initiatives have become common since the advent of the second Trump administration. Acting EEOC Chair Andrea Lucas made clear on her first day as head of the agency that among her top priorities was the investigation and elimination of “unlawful” DEI initiatives. Employers who administer DEI programs or engage in DEI activities have since found themselves under unwanted scrutiny.

For instance, on March 17, 2025, the EEOC sent letters to several large national and international law firms regarding their “touted” DEI practices. Specifically, the EEOC sought information regarding alleged disparate treatment in hiring, compensation, promotion, demotion, and access to mentoring, leadership development, and other training. Four of those firms subsequently chose to voluntarily resolve matters with the EEOC by formally agreeing not to engage in “unlawful” discrimination practices.

In light of these developments, employers should inventory their current hiring, promotion, and training policies to determine whether they may run afoul of the EEOC’s directives concerning Title VII and DEI. Employers should also ensure that hiring managers and supervisors are trained in identifying employment policies and practices, whether formal or informal, that may favor persons of one race or color over another.

Careful thought should also be given into whether it makes business sense to continue employer initiatives that may appear to segregate or favor certain groups of employees – for instance, by giving those employees preference in training, networking, or promotion opportunities.

* * *

Schwartz Hannum will continue to monitor Trump administration directives focused on the workplace. If you have questions about DEI-related issues or any other employment concerns, please feel free to reach out to one of our experienced employment attorneys.