EEOC and DOJ Issue Joint Press Release Warning Against Unlawful DEI-Related Discrimination
March 28, 2025
- Christine Gantt-Sorenson
The Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) issued a press release on March 19, 2025, to introduce two technical assistant documents “focused on educating the public about unlawful discrimination related to ‘diversity, equity and inclusion (DEI)’ in the workplace.” The EEOC and DOJ explain DEI is a broad term that is not defined in Title VII of the Civil Rights of Employment Act, §§42 U.S.C. 2000e-2, et seq. (“Act”), which prohibits discrimination on the basis of applicants’ or employees’ protected characteristics. The Agencies explain DEI discrimination that violates the Act involve employment actions taken by an employer motivated, in whole or in part, by an employee’s or applicant’s protected status.
The two technical assistance documents titled “What you Should Know about DEI-related Discrimination at Work” and “What To Do If You Experience Discrimination Related to DEI at Work” are located on the EEOC’s website.
In the first document, “What you Should Know about DEI-related Discrimination at Work,” the EEOC states what is prohibited by the Act as it applies to DEI. The EEOC explains DEI programs that include action taken on the basis of an employee’s or an applicant’s protected status would violate the Act.
The EEOC also details the complaint process employees should follow in the event they believe they were discriminated against by application of an employer’s DEI policy.
The notion that Title VII prohibits discrimination or harassment against any employee on the basis of their protected status is not new and has been the law since 1964 when the Act was promulgated and affirmed by the United States Supreme Court in opinions issued over many years. The EEOC notes this in its technical assistance document which details some of those positions as well as its prior guidance in support.
Takeaways for Employers
There seems to be a great deal of confusion as to what is permissible and not permissible regarding DEI programs. It is important for employers, businesses and entities to know what is or is not legal under the Act to inform their policies and practices. The EEOC technical assistance does not prohibit DEI programs that work to encourage inclusivity of all employees in the workplace, without regard to their protected statuses, nor would those programs violate the Act unless they prefer one group of employees in a protected class over another, undertake to provide or exclude employment, opportunities, benefits or anything of value to employees on the basis of their protected status, or engage in training that meet the definition of illegal harassment.
HSB’s Employment Law Team will continue to monitor and provide updates on this topic. For specific questions about how this may affect your organization, please contact our employment law practice group.
[1] The Act prohibits unlawful employment practices on the basis of an employee or applicant’s race, color, religion, or national origin. Other federal laws contain the same prohibition on the basis of age, disability, and military status.
In the first document, “What you Should Know about DEI-related Discrimination at Work,” the EEOC states what is prohibited by the Act as it applies to DEI. The EEOC explains DEI programs that include action taken on the basis of an employee’s or an applicant’s protected status would violate the Act.
- The law prohibiting illegal discrimination or harassment in employment does not only protect minorities in the protected classes under the Act, but any employee falling under the protected class categories.[1]
- The law prohibits exclusion from benefits, training, resource groups, or other programs, or limiting or segregating employees on the basis of race, sex or other protected characteristics.
- The law prohibits training regarding diversity, equity and inclusion that creates a hostile work environment, such as “unwelcome remarks or conduct based on race, sex or other protected characteristics.”
- Illegal harassment is unwelcome conduct based on a protected characteristic that is so severe or pervasive that it creates a work environment that is intimidating, hostile or offensive to a reasonable person.
- The EEOC issued Enforcement Guidance on Harassment in the Workplace on April 29, 2024. This Guidance was reviewed in detail by the HSB Employment Law Team in their September 2024 webinar. There have been mutterings that the 2024 Guidance was revoked or nullified. The 2024 EEOC Guidance states clearly that the Guidance was approved by the Commission and “any modification must be approved by a majority vote of the Commission.”
- The law prohibits retaliation against any employee who opposes their employer’s DEI practices.
- DEI initiatives or programs violate the Act when an employer takes employment action based on or motivated by race, sex or the other identified protected classes.
- Discrimination refers to disparate treatment, or being treated unfavorably as compared to other employees on the basis of protected status, and pertains to all aspects of employment such as hiring, promotion, demotion, firing, compensation and benefits, access to training and opportunities, mentoring, sponsorships, networking, both formal and informal, internships, interviews, or assignments.
- The EEOC explains the law prohibits employers from providing employer-sponsored activities such as clubs or groups on the basis of protected status, including use of company facilities, time or resources.
- The EEOC explains “business interests or necessity” does not justify preference over one group of employees for another on the basis of their protected status.
- The EEOC specifically mentions that customer-preference or client requirements would not act as a defense to race or color discrimination.
- The EEOC explains bona fide occupational qualifications (BFOQ) are an affirmative defense to any claim of illegal discrimination or harassment only in limited circumstances where the BFOQ is “reasonably necessary to the normal operation of that particular business or enterprise” but notes this exception excludes race or color. In other words, a BFOQ on the basis of any protected status other than race or color is not excluded.
The EEOC also details the complaint process employees should follow in the event they believe they were discriminated against by application of an employer’s DEI policy.
The notion that Title VII prohibits discrimination or harassment against any employee on the basis of their protected status is not new and has been the law since 1964 when the Act was promulgated and affirmed by the United States Supreme Court in opinions issued over many years. The EEOC notes this in its technical assistance document which details some of those positions as well as its prior guidance in support.
Takeaways for Employers
There seems to be a great deal of confusion as to what is permissible and not permissible regarding DEI programs. It is important for employers, businesses and entities to know what is or is not legal under the Act to inform their policies and practices. The EEOC technical assistance does not prohibit DEI programs that work to encourage inclusivity of all employees in the workplace, without regard to their protected statuses, nor would those programs violate the Act unless they prefer one group of employees in a protected class over another, undertake to provide or exclude employment, opportunities, benefits or anything of value to employees on the basis of their protected status, or engage in training that meet the definition of illegal harassment.
HSB’s Employment Law Team will continue to monitor and provide updates on this topic. For specific questions about how this may affect your organization, please contact our employment law practice group.
[1] The Act prohibits unlawful employment practices on the basis of an employee or applicant’s race, color, religion, or national origin. Other federal laws contain the same prohibition on the basis of age, disability, and military status.
