By: Jennifer DeFlitch and Emily Mahler, March 25, 2025
On March 19, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) released two technical assistance documents addressing DEI policies, programs, and practices.[1] These documents state that under Title VII, “DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated — in whole or in part — by an employee’s or applicant’s race, sex, or other protected characteristic.”[2] In these documents, the EEOC emphasizes that Title VII’s protections apply equally to everyone; there is no such thing as “reverse” discrimination, and these protections apply to minority and majority groups equally. Additionally, the EEOC reiterates that Title VII broadly protects employees, applicants, and training or apprenticeship program participants. Finally, EEOC explains that DEI related discrimination may include disparate treatment; limiting, segregating, and classifying; harassment; and/or retaliation.
Disparate Treatment
DEI-related discrimination occurs when an employer takes an action motivated by race, sex, or another protected characteristic. An employment action may be unlawful even if discrimination is not the only factor in the decision; race, sex, or any other protected characteristic under Title VII can be just one of several factors influencing the employer’s choice. Title VII prohibits disparate treatment in a broad range of employment actions, including:
- Hiring
- Firing
- Promotion
- Demotion
- Compensation
- Fringe Benefits
- Access or exclusion from training
- Access to mentoring
- Selection for Interviews
- Job Duties of Work Assignments
Limiting, Segregating, and Classifying
Title VII prohibits employers from limiting, segregating, or classifying employees or applicants based on race, sex, or other protected characteristics in a way that affects their employment status or deprives them of opportunities. In the context of DEI, employers may not segregate or group employees based on race, sex, or other protected characteristics for training, programming, or other employment privileges — even if the separate groups receive the exact same training or content. Employers also may not limit membership in workplace groups or clubs to certain protected groups. Instead, the EEOC advises employers to provide “training and mentoring that offers workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well and advance to upper-level jobs.”[3]
Harassment
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.
In the context of DEI, employees may demonstrate that DEI training created a hostile work environment by showing that the training was discriminatory in its content, application, or context.
Retaliation
Title VII also prohibits employers and other “covered entities” from retaliating because an individual has engaged in protected activity under the statute. Reasonable opposition to DEI training may qualify as protected activity under Title VII. Thus, an employer cannot retaliate against an individual for opposing or reporting such activity.
Defenses
Title VII permits employers to raise a bona fide occupational qualification (BFOQ) defense to justify hiring or classifying an individual based on religion, sex, or national origin. However, this affirmative defense is available only in very limited circumstances. Employers may not invoke a business necessity defense against claims of intentional discrimination, and race is never included in this exception. Significantly, there is no general business interest in diversity or equity that justify or permit race motivated hiring or other employment actions.
Specifically, client or customer preference is not a valid defense to discrimination under Title VII; decisions based on a client’s or customer’s discriminatory preferences are just as unlawful as if the employer had made the decision itself.
Conclusion
In conclusion, employers should review their DEI policies to ensure compliance with both federal and state laws. Given the current legal landscape, any DEI program could potentially be viewed as a violation of Title VII. As such, employers should proceed with caution until the law is further clarified.
[1] EEOC Technical Assistance Document “What You Should Know About DEI-Related Discrimination at Work” was issued jointly by the EEOC and Department of Justice. EEOC Technical Assistance Document “What To Do If You Experience Discrimination Related to DEI at Work” was issued solely by the EEOC.
[2] EEOC Technical Assistance Documents “What You Should Know About DEI-Related Discrimination at Work” and “What To Do If You Experience Discrimination Related to DEI at Work”.
[3] See EEOC Race Discrimination Guidance, Part 15-IX.
