On March 16, the EEOC and the Department of Justice (DOJ) warned against DEI-related discrimination in the workplace in a technical assistance document entitled “What To Do If You Experience Discrimination Related to DEI at Work.” The EEOC simultaneously published “What You Should Know About DEI-Related Discrimination at Work,” a longer FAQ style guide. The documents (“guidance”) are consistent with the directives in President Trump’s January 20, 2025, Executive Order 14151 and Executive Order 14173, summarized in a previous Lake Effect blog.
The guidance summarizes the process for filing a discrimination charge with the EEOC. It states that Title VII applies to employees, potential and actual applicants, interns, and training program participants, and that “Title VII’s protections apply equally to all racial, ethnic, and national origin groups, as well as both sexes.”
In addition, the guidance identifies DEI-related initiatives, policies, programs, or practices that may constitute unlawful discrimination to the extent that any action is motivated (in whole or in part) by an individual’s race, sex, or other protected characteristic. Examples of prohibited actions include:
- Disparate treatment in the terms and conditions of employment, which may include access to or exclusion from training (including leadership development programs), mentoring, sponsorship, networking, internship, or fellowship programs, as well as selection for interviews (including placement in or exclusion from a candidate slate or pool).
- Limiting, segregating, and classifying employees, which may include “limiting membership in workplace groups such as Employee Resource Groups (ERG) 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.”
- Harassment, which may occur when someone is subjected to unwelcome remarks or conduct based on race, sex, or other protected characteristics. “Depending on the facts, DEI training may give rise to a colorable hostile work environment claim.”
- Retaliation against an individual who has engaged in a protected activity, which may include reasonable opposition to DEI training “if the employee provides a fact-specific basis for his or her belief that the training violates Title VII.”
The EEOC’s FAQ document specifies that an employer cannot justify taking an employment action based on race, sex, or another protected characteristic because the employer has a general business necessity or interest in “diversity,” including preferences or requests by the employer’s clients or customers.
Although the guidance does not have the force of law or alter Title VII in any way, it does suggest that the current EEOC will closely scrutinize DEI-related activities in the workplace. Given this dramatic shift from the approach of the prior administration, Employers should carefully review any DEI-related activities to minimize exposure to unlawful discrimination claims. Your partners at Lake Effect can help you assess your policies and practices for compliance.
The attorneys and HR professionals at Lake Effect can provide guidance on employment-related Executive actions, employment laws, regulations, and agency guidelines. We continue to monitor important legal and HR developments, as well as other information that could impact the workplace. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.
