Confused by the New DEI Guidance? Here is Everything You Need to Know.
- East West General Counsel
- Mar 25
- 7 min read
The U.S. Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) jointly issued new guidance addressing Diversity, Equity, and Inclusion (DEI) initiatives in the workplace. This in-depth examination of the legal framework outlined in Title VII of the Civil Rights Act of 1964 provides a comprehensive analysis of how DEI-related employment practices may violate anti-discrimination laws.
Procedural Issues with the EEOC and DOJ DEI-Related Discrimination Guidance
Lack of Binding Authority and Rulemaking Process Concerns
The EEOC and DOJ technical assistance documents do not carry the force of law because they were not issued through the formal rulemaking process required under the Administrative Procedure Act (APA).
The APA mandates that substantive agency rules affecting legal rights must undergo notice-and-comment rulemaking, which includes public input, regulatory analysis, and a justification for policy changes.
Because these documents were issued as technical assistance rather than formal regulations, they lack legally enforceable authority and can only provide non-binding guidance.
Implications of the Supreme Court’s Decision in Loper Bright Enterprises v. Raimondo
The Loper Bright decision significantly curtailed the ability of federal agencies to interpret statutes broadly without explicit congressional authorization.
Previously, courts deferred to agency interpretations under Chevron deference (see our analysis here), provided the statute was ambiguous. Now, courts are not required to defer to agency interpretations.
This means that while the EEOC and DOJ may enforce their interpretations, federal courts are not obligated to uphold them, creating uncertainty in enforcement and compliance strategies.
Rejection of the “Heightened” Standard for Reverse Discrimination Claims
The EEOC’s rejection of the “background circumstances” test for reverse discrimination claims is an interpretation that lacks direct statutory authority and is currently under judicial review in Ames v. Ohio Department of Youth Services.
Lower courts have previously used this heightened standard to assess claims by “majority group” plaintiffs (e.g., white employees in racial discrimination claims or male employees in sex discrimination claims).
By preemptively rejecting this approach without a formal rulemaking process, the EEOC risks judicial pushback if courts rule in favor of keeping the heightened standard.
Inconsistent Interpretation of Motivating Factor Standard
The EEOC guidance states that an employment action is unlawful if race, sex, or another protected characteristic is a motivating factor, even if it was not the sole or but-for cause.
However, the Supreme Court in University of Texas Southwestern Medical Center v. Nassar (2013) ruled that retaliation claims under Title VII must meet a but-for causation standard, suggesting potential conflicts between EEOC policy and Supreme Court precedent.
Courts may challenge the EEOC’s broad interpretation of motivating factor liability in cases where employers can show that other legitimate factors influenced their employment decisions.
Potential Overreach in Classifying DEI Practices as Discriminatory
The EEOC guidance suggests that various DEI programs - such as affinity groups, networking programs, and mentorship opportunities - could be unlawful if membership is limited based on race, sex, or another protected characteristic.
However, Title VII does not explicitly prohibit voluntary DEI initiatives, and employers have historically structured such programs under the bona fide affirmative action framework set forth in United Steelworkers of America v. Weber (1979) and Johnson v. Transportation Agency (1987).
Without clear regulatory definitions, employers face legal uncertainty in distinguishing lawful DEI programs from those that might trigger liability.
Ambiguity in Defining Unlawful Segregation and Harassment
The guidance warns against segregating employees into groups based on protected characteristics during DEI training, even when both groups receive equal resources.
However, Title VII case law generally requires a showing of harm or adverse employment action - and it is unclear whether temporary separation in training sessions meets this standard.
Additionally, the EEOC suggests that DEI training could contribute to a hostile work environment, but does not clarify when general DEI discussions cross the line into harassment, creating subjectivity in enforcement.
Strict Filing Deadlines Without Clear Tolling Mechanisms
The EEOC emphasizes strict time limits for filing a discrimination charge but does not address potential tolling exceptions for employees who may not immediately recognize that a DEI-related practice constitutes discrimination.
Unlike other discrimination claims where courts have applied equitable tolling (e.g., in cases of concealed or ongoing discrimination), the EEOC does not clarify how tolling might apply for DEI-related claims that develop over time.
Potential Chilling Effect on Employers and Employees
The guidance broadly advises employees to file EEOC charges if they believe they have experienced DEI-related discrimination, but it does not clarify thresholds for actionable claims, which could encourage speculative or premature complaints.
Employers may become hesitant to implement any DEI initiatives for fear of litigation, contradicting previous federal efforts to encourage workplace diversity.
The lack of safe harbor provisions or compliance pathways in the guidance leaves employers without clear risk mitigation strategies.
While the EEOC and DOJ guidance highlights potential risks in DEI-related employment practices, its procedural shortcomings—including the lack of formal rulemaking, reliance on agency interpretation over Supreme Court precedent, and ambiguities in enforcement—create significant legal uncertainty. Without further judicial clarification or formal rulemaking, both employers and employees face an unpredictable legal landscape regarding DEI policies and potential discrimination claims.
Title VII Protections Against Employment Discrimination
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment decisions based on race, sex, or other protected characteristics. The guidance explicitly states:
"Title VII’s protections apply equally to all racial, ethnic, and national origin groups, as well as both sexes. Different treatment based on race, sex, or another protected characteristic can be unlawful discrimination, no matter which employees are harmed."
Before initiating a lawsuit in federal court, individuals must first file a charge of discrimination with the EEOC. The EEOC investigates such charges and may pursue legal action against private-sector employers. The DOJ, on the other hand, has jurisdiction over state and local government employers and may file suit following an EEOC investigation.
What Can DEI-Related Discrimination Look Like?
The guidance underscores that DEI policies, programs, or practices may be unlawful if they involve employment actions motivated—in whole or in part—by an individual’s race, sex, or another protected trait. Specifically, the EEOC warns that:
"Title VII does not permit the use of quotas or the balancing of a workforce by race, sex, or other protected traits. Employment decisions must be made based on individual qualifications, not group identity."
Disparate Treatment
DEI-related discrimination may involve disparate treatment when an employer makes employment decisions influenced, even partially, by race, sex, or other protected characteristics. Title VII prohibits discrimination in all aspects of employment, including:
Hiring
Firing
Promotion
Demotion
Compensation
Fringe benefits
Exclusion from training programs
Exclusion from mentorship or sponsorship initiatives
Exclusion from fellowships
Selection for interviews or inclusion on candidate slates
The guidance emphasizes:
"An employer that grants or denies opportunities based on race, sex, or another protected characteristic - even with the intent of promoting diversity—may be engaging in unlawful discrimination."
Limiting, Segregating, and Classifying Employees
Title VII also prohibits practices that limit or segregate employees based on protected characteristics. The guidance highlights that unlawful practices may include:
Restricting membership in Employee Resource Groups (ERGs) or other affinity groups to individuals of certain racial or sex-based classifications.
Separating employees into groups based on race, sex, or another protected characteristic during DEI training sessions, even if all groups receive identical content and resources.
The EEOC states:
"Employers must ensure that participation in ERGs, training programs, and mentorship initiatives is open to all employees, without regard to race, sex, or other protected traits."
Harassment
DEI initiatives must not foster a work environment that is intimidating, hostile, or abusive based on race, sex, or other protected traits. The guidance warns that:
"A workplace may become unlawfully hostile if DEI-related discussions involve repeated derogatory remarks about certain racial or gender groups, or if employees are required to endure conduct that a reasonable person would find offensive."
Unwelcome remarks or conduct linked to DEI initiatives can be considered harassment if they result in adverse employment effects or create a pervasively hostile environment.
Retaliation
The EEOC and DOJ make clear that Title VII protects employees who oppose DEI-related discrimination. Retaliation is unlawful when an employer takes adverse action against an individual for engaging in protected activities, such as:
Objecting to a DEI program that violates Title VII.
Participating in an internal or EEOC-led investigation regarding DEI-related discrimination.
Filing an EEOC charge alleging DEI-related discrimination.
The guidance specifies:
"An employee who reasonably believes that a DEI training violates Title VII, and who voices their objection in good faith, is engaging in protected activity. Employers may not retaliate against such employees."
Who Can Be Affected by DEI-Related Discrimination?
Title VII extends protections to a broad range of individuals in the workplace, including:
Full-time and part-time employees
Job applicants and candidates
Interns and trainees
Participants in employer-sponsored training programs
The guidance clarifies that:
"Employment discrimination protections apply equally to all employees and job applicants, regardless of their race, sex, or other protected characteristics."
What to Do If You Experience DEI-Related Discrimination at Work
Employees who believe they have experienced DEI-related discrimination are encouraged to act promptly, as strict time limits apply for filing a charge with the EEOC. The guidance provides the following steps:
Document the Discrimination: Keep detailed records of the discriminatory actions, including dates, locations, witnesses, and relevant communications.
Report the Issue Internally: If safe to do so, report the matter to HR or a designated workplace compliance officer.
File an EEOC Charge: Contact the EEOC as soon as possible to initiate an investigation.
For assistance, employees can reach the EEOC via:
Phone: 1-800-669-4000
ASL Videophone: 1-844-234-5122
Online Filing Portal: How to File a Charge of Employment Discrimination
The EEOC concludes:
"Ensuring equal employment opportunity requires vigilance. Employees who believe they have faced discrimination should not hesitate to seek legal recourse."
The March 2025 EEOC and DOJ guidance raises important questions about how DEI initiatives intersect with Title VII protections. While the documents suggest agencies may scrutinize programs that consider protected characteristics, many practical implications remain unclear as courts continue to interpret these issues. Employers may want to carefully review their DEI approaches while monitoring how this guidance is applied in practice. Similarly, employees with concerns may wish to document potential issues while the legal landscape evolves. As with any new regulatory development, the full impact will likely become clearer through future enforcement actions and case law.
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