On March 19, 2025, the Equal Employment Opportunity Commission (EEOC), in conjunction with the U.S. Department of Justice (DOJ), issued two “technical assistance” documents “focused on educating the public about unlawful discrimination related to ‘diversity, equity, and inclusion’ (DEI) in the workplace.” Unlike guidance documents, which must be approved by a majority vote of the Commission (which, with only two sitting members, currently lacks a quorum), a technical assistance document, which does not adopt new policy but applies existing policy to different sets of facts, can be issued unilaterally by the agency’s head.

The first document, “What To Do If You Experience Discrimination Related to DEI at Work,” was issued jointly by the EEOC and the DOJ. A second, longer document, “What You Should Know About DEI-Related Discrimination at Work,” is presented in a question-and-answer format and was released by the EEOC.

The Q&A document in particular stresses that Title VII does not provide any exception for DEI or “diversity interests” in prohibiting discrimination based on race, sex, or other protected category, and a general business interest in diversity or equity is insufficient to support any employment decision being made in whole or in part on the basis of a protected characteristic. Both documents set forth the procedures for an employee who claims to have experienced DEI-related discrimination to file a charge and seek an investigation. Additionally, both include examples of what the agencies view as potential actionable discrimination if they take into account an employee or applicant’s race, sex, or other protected category, including:

• Hiring;
• Firing;
• Promotion;
• Demotion;
• Compensation;
• Fringe benefits;
• Access to or exclusion from training (including training characterized as leadership development programs);
• Access to mentoring, sponsorship, or workplace networking or networks;
• Internships (including internships labeled as “fellowships” or “summer associate” programs);
• Selection for interviews, including placement or exclusion from a candidate “slate” or pool; and
• Job duties or work assignments.

The documents note that federal civil rights law also prohibits employers from limiting, segregating, or classifying employees or applicants based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities, including employee activities that are employer-sponsored (for example, where such activities are provided company time, facilities, premises, or other forms of official or unofficial encouragement or participation), where participation in or resources for such activities are limited on the basis of a protected characteristic.

With specific respect to employee affinity groups (such as Employee Resource Groups (ERGs), Business Resource Groups (BRGs), or other employee affinity groups), the EEOC takes the position that it is “unlawful segregation” to limit such opportunities to certain protected groups, or to restrict membership in any ERG or BRG to only members of a protected class. The EEOC also notes that it is unlawful for employers to separate workers into groups based on race, sex, or another protected characteristic when administering DEI or any trainings, workplace programming, or other privileges of employment (like ERGs and BRGs), even if the separate groups receive the same programming content or amount of employer resources.

Rather, the EEOC takes the position that employers instead should provide “training and mentoring that provides workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascend to upper-level jobs” and ensure that “employees of all backgrounds . . . have equal access to workplace networks” (emphasis in original).

Finally, with respect to DEI training, the EEOC notes that an employee may be able to show that such training created a hostile work environment where training was discriminatory in content, application or context (for example, its design or execution) in a manner that a reasonable person would consider intimidating, hostile, or abusive.

This guidance comes on the heels of the administration’s earlier efforts to target so-called “unlawful DEI” by way of executive orders and every means available. And it bears note that on her first day as the head of the agency, the acting chair of the EEOC made clear that among her top priorities was the investigation and elimination of “unlawful” DEI in the workplace. Given the intense focus the EEOC and other federal agencies will give to these issues, employers that engage in DEI efforts or activities that may potentially run afoul of Title VII or other laws are advised to seek the advice of counsel in evaluating such programs.