EEOC Issues Guidance on DEI Related Discrimination

The U.S. Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) jointly issued a press release on Wednesday, March 19, 2025, that gave some further clarification on unlawful discrimination related to Diversity, Equity, and Inclusion (DEI). 

DEI initiatives have been called out in several recent Executive Orders like EO 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity. The Executive Orders references “illegal DEI” but did not provide further clarification on what that meant.  

The EEOC press release reviews how DEI initiatives must comply with federal anti-discrimination laws like Title VII of the Civil Rights Act. The EEOC and DOJ released two documents to help employers avoid unlawful DEI-related discrimination and an FAQ document on what to do if an employee has been the victim of DEI discrimination. 

• What You Should Know About DEI-Related Discrimination at Work 

• What To Do If You Experience Discrimination Related to DEI at Work 

What DEI-Related Discrimination Can Look Like 

One of the supporting documents linked in the press release, What To Do If You Experience Discrimination Related to DEI at Work, outlines examples of discrimination under the DEI umbrella. It's important to note that the behaviors labeled as DEI-discrimination mirror long-known discriminatory practices in general and are not specific to DEI.  Below are other behaviors described in the document:  

• Using Quotas: Unlawfully using quotas or workforce “balancing” by race, sex, or other protected traits. Keep in mind quotas or making employment decisions based on protected traits were already unlawful under Title VII.  

• Disparate Treatment: Regardless of whether it's connected to DEI, disparate treatment—where an employment decision in one of the areas below is partially or wholly based on race, sex, or another protected characteristic—is illegal and not only in DEI-related contexts.

• • Hiring or firing
  • Promotions or demotion
  • Compensation or fringe benefit
  • Exclusion from training, fellowships, or mentoring or sponsorship program
  • Selection for interviews including candidate slates

• Limiting, segregating, or classifying employees based on protected characteristics for things like:

• • Employee Resource Groups 

• • Separating employees based on protected characteristics for DEI or other training 

• Harassment is illegal under Title VII and if it alters employment conditions or is so severe or pervasive that it creates a hostile work environment. DEI training may give rise to hostile work environment claims.  

• An employee's reasonable opposition to DEI training may be considered protected activity if they provide a specific, fact-based reason for believing it violates Title VII. 

Employer Recommendations to Combat Unlawful DEI 

We recommend all employers do the following to ensure their DEI programs aren’t unlawful and that they do not present any risk of discrimination under Title VII: 

• Conduct Regular Reviews: Assess DEI or equal employment opportunity programs periodically to ensure they align with legal standards and do not disadvantage any group. OutSolve can assist you with this task.  

• Provide Training: Educate management and staff on implementing DEI initiatives within the framework of anti-discrimination laws. Training should focus on alignment with Title VII and non-discrimination. Addressing legal concepts and practical strategies for making employment decisions that avoid favoring one group over another.   

• Seek Legal Counsel: Consult with legal experts when developing or modifying DEI policies to ensure compliance. 

What to Do If You Experience DEI-Related Discrimination 

The EEOC provides a resource for individuals who believe they have faced discrimination related to DEI efforts in their newest FAQ document. This document lists out 11 FAQs with things employees should know or can do if they believe they have faced DEI related discrimination. It covers: 

• Filing a Discrimination Claim: Employees who believe they have experienced DEI-related discrimination must first file a charge with the EEOC before suing in federal court. The EEOC investigates claims against private employers, while the Department of Justice handles cases involving state and local government employers. Federal employees follow a separate complaint process through their agency’s EEO counselor. 

• Title VII Protections and Employer Responsibilities: Title VII protects all workers, not just minority groups, and applies to employers, staffing agencies, labor organizations, and training programs. Discrimination is unlawful when employment decisions are based, even partially, on race, sex, or other protected characteristics. DEI programs must ensure equal access to opportunities without unlawful segregation or preferential treatment. 

• Harassment, Retaliation, and Legal Risks in DEI Programs: Employers cannot create a hostile work environment through DEI-related policies or training. Employees who reasonably oppose discriminatory DEI practices are protected from retaliation. Courts may find DEI initiatives unlawful if they include discriminatory criteria in hiring, promotions, training access, or workplace policies. 

What the EEOC Press Release Means for Your Organization 

As unlawful DEI initiatives continue to be at the forefront of this administration, it is integral that your organization understands what could be considered unlawful. Your business practices and policies should adhere to all federal anti-discrimination laws and should be audited to ensure compliance.  

OutSolve can provide unlawful DEI auditing solutions, as well as, periodic analysis to ensure discriminatory practices aren't lurking in employment decisions. Our expert consultants can provide guidance and best practices. Reach out today for help!