On March 19, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) announced the release of two technical assistance documents which are “focused on educating the public about unlawful discrimination related to ‘diversity, equity, and inclusion’ (DEI) in the workplace.” The EEOC and the DOJ released a joint one-page technical assistance document titled “What To Do If You Experience Discrimination Related to DEI at Work,” and the EEOC also released a longer question-and-answer technical assistance document titled “What You Should Know About DEI-Related Discrimination at Work” (collectively, the “Guidance”).
EEOC Acting Chair Andrea Lucas stated “[t]hese technical assistance documents will help employees know their rights and help employers take action to avoid unlawful DEI-related discrimination.” Deputy Attorney General Todd Blanche added “[t]he technical assistance document provides clear information for employees on how to act should they experience unlawful discrimination based on DEI practices.” The Press Release notes that, while DEI initiatives have become increasingly prevalent in large and prominent businesses, universities, and cultural institutions, its widespread adoption does not change the long-standing legal prohibition against employment discrimination based on protected characteristics. Applying those statutory prohibitions, established case law, and prior EEOC rules, the Guidance reflects the most detailed public explanation offered by the Trump Administration to date of its view as to how DEI actions may run afoul of the nation’s anti-discrimination laws.
The Guidance, which is framed as advice to individuals who may have experienced DEI-related discrimination in the workplace, explains the procedural steps necessary to bring a DEI-related claim before the EEOC and in federal court, before pivoting to an analysis of how DEI programs and practices may violate the law. Key points in that analysis include:
- Tying DEI Initiatives to Title VII. The Guidance notes that Diversity, Equity and Inclusion (DEI) is a broad term that is not defined in Title VII of the Civil Rights Act of 1964 (Title VII). According to the Guidance, DEI initiatives, policies, programs, or practices may be unlawful under Title VII “if they involve an employer … taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.”
- Title VII Protections Apply to All Workers. The Guidance emphasizes that “Title VII’s protections apply equally to all workers,” not just to minority groups and women, and “[d]ifferent treatment based on race, sex, or another protected characteristic can be unlawful discrimination, no matter which employees or applicants are harmed.” It confirms that Title VII does not just protect employees from discrimination; it also protects applicants (potential and actual), training or apprenticeship program participants, and in some cases, interns.
- Equal Footing for “Reverse Discrimination” Claims. “The EEOC’s position is that there is no such thing as ‘reverse’ discrimination; there is only discrimination.” The EEOC does not require a higher burden of proof for “reverse” discrimination claims.
- Unlawful DEI-Related Disparate Treatment. The Guidance states that DEI initiatives, policies, programs, or practices may be unlawful under Title VII where such initiative, policy, program, or practice “involves an employer . . . taking an employment action motivated—in whole or in part—by race, sex, or another protected characteristic.” The Guidance notes that Title VII’s prohibition against discrimination applies to a wide variety of employment actions, including DEI-related disparate treatment in: hiring; firing; promotions; demotions; compensation; fringe benefits; job duties or work assignments; selection for interviews (including placement on or exclusion from a “slate” or pool of candidates); and access to or exclusion from training, mentorship, sponsorship, workplace networking or networks, and internships, including fellowships and “summer associate” programs.
- Limiting, Segregating, or Classifying Workers Related to DEI. Title VII prohibits employers from “limiting, segregating, or classifying employees based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities.” According to the Guidance, this includes:
- Limiting membership in workplace groups (such as Employee Resource Groups, Business Resource Groups, or other employee affinity groups) to certain protected groups; and
- Separating employees into groups based on race, sex, or another protected characteristic when administering DEI or other trainings, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources.
- DEI-Related Training May Give Rise to Hostile Work Environment Claims. 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. The Guidance states that diversity or other DEI-related training may create a hostile work environment where an employee can plausibly allege or prove that the training was discriminatory in content, application, or context.
- Only “Some” Harm Required for Discrimination Claims. The Guidance, citing the Supreme Court’s opinion in Muldrow v. City of St. Louis, Missouri, et al., states that employees need only show “some injury” or “some harm” affecting the “terms, conditions, or privileges” of employment to allege a colorable claim of discrimination.
- No “Sole Reason” or “Deciding Factor” Requirement. A Title VII protected characteristic need not be the “sole” reason or the “but-for” deciding factor for the employer’s decision or action. An unlawful employment action is still unlawful even if the protected characteristic was just one factor among others that contributed to the employer’s decision or action.
- No Business Necessity or Customer/Client Preference Exceptions. Employers violate Title VII if they take an employment action motivated, in whole or in part, by race, sex, or another protected characteristic. Discrimination cannot be justified based on client, customer, or coworker preferences or requests.
- Protections for Employees Who Oppose Unlawful DEI. Title VII protects employees who engage in protected activity from retaliation which, according to the Guidance, could include employees who object to or oppose DEI-related employment discrimination. The Guidance states that opposition to a DEI training may constitute protected activity if the employee provides a “fact-specific basis” for their belief that the training violates Title VII.
This Guidance comes approximately two months after President Trump issued Executive Order 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity) and Executive Order 14151 (Ending Radical and Wasteful Government DEI Programs and Preferencing) (collectively, “the DEI Executive Orders”). The DEI Executive Orders did not define what constitutes “illegal” or “unlawful” diversity, equity, and inclusion (DEI) or diversity, equity, inclusion, and accessibility (DEIA), and they have been challenged in court on that basis. Although the Guidance still contains significant gray areas, it reflects an attempt by the EEOC and the DOJ to start defining the line between lawful and unlawful DEI in the workplace. How courts will address the Guidance in litigation, whether initiated by the government or private parties, remains to be seen.
The release of this Guidance should serve as an additional prompt for employers and recipients of federal funding to conduct a privileged review of their DEI initiatives, policies, programs, and practices for compliance with Title VII.
Ballard Spahr’s Labor and Employment Group has robust experience in advising private sector and educational clients in navigating the new landscape when it comes to diversity, equity, and inclusion initiatives and programs, including conducting privileged reviews of client’s DEI policies, programs, and initiatives, and we are actively tracking all DEI-related legal developments. Please contact us if we can assist you in this rapidly evolving area.