Employers Are Advised To Revisit DEI Programs In Light of Newly-Released Technical Assistance Documents

On March 19, 2025, the Equal Employment Opportunity Commission (the “EEOC”) and the Department of Justice (the “DOJ”) jointly issued a technical assistance document entitled “What To Do If You Experience Discrimination Related to DEI at Work” (the “Joint Statement”). The DOJ issued a press release indicating that the Joint Statement focused on educating the public about unlawful discrimination related to diversity, equity, and inclusion (“DEI”) in the workplace.

Among other things, the Joint Statement explains that any potential and actual job applicant, or any current or former employee, including interns, may file a charge of discrimination with the EEOC related to a DEI program or policy. The EEOC will investigate charges of DEI-related discrimination and may elect to file a lawsuit under Title VII of the Civil Rights Act of 1964 (“Title VII”) against businesses. The Joint Statement makes clear that private sector employers, regardless of whether they are federal contractors, are not immune from investigations and potential liability if they continue to pursue DEI programs that may have a direct or indirect adverse impact on an employee who is not a member of the underrepresented group intended to benefit from the employer’s DEI program.

Relatedly, the EEOC contemporaneously published another technical assistance document, entitled “What You Should Know About DEI-Related Discrimination at Work” a comprehensive Q&A stating that DEI policies, programs, or practices may be unlawful if they involve an employer or other covered entity (such as a staffing agency or recruiter) taking an employment action motivated, in whole or in part, by an employee’s or applicant’s race, sex, or any other protected characteristic under applicable law (the “DEI Q&A” along with the Joint Statement, the “DEI Technical Assistance Documents”).

What Is DEI, and Is Every DEI Program Now Unlawful?

The DEI Technical Assistance Documents both note that DEI is a broad term that is not defined in Title VII. Likewise, neither of the DEI Technical Assistance Documents explicitly defines DEI. The DEI Technical Assistance Documents state that impermissible DEI includes any employer action that is “motivated – in whole or in part – by race, sex, or another protected characteristic” regardless of the reason. The DEI Technical Assistance Documents further state that neither the EEOC nor the U.S. Supreme Court has ever recognized an overall interest in a diverse workforce or customer/client racial preferences as acceptable bases for employment practices. Nevertheless, the DEI Technical Assistance Documents do not go so far as to say that having a DEI program is unlawful in and of itself. In fact, the DEI Q&A even acknowledges that Title VII approves of initiatives that promote an inclusive workplace for all individuals that “create[s] a culture of respect for individual differences.” But if implementation of a DEI program has an adverse impact on the terms, conditions or privileges of employment of a person who is outside of the class a program is intended to benefit, that employee may properly bring a claim of employment discrimination.

What Is DEI-Related Discrimination?

If an employer takes an “employment action” motivated, even in part, by race, sex (including gender identity, sexual orientation, and pregnancy) or another protected characteristic (including color, religion and national origin), the DEI Technical Assistance Documents label that action as discriminatory. The Joint Statement specifies particular adverse employment actions that may underlie a viable DEI-related discrimination claim, including hiring, firing, promotion, demotion, and changes in compensation and fringe benefits. More notable is the list of “new” types of actions that, according to the DEI Technical Assistance Documents, would be enough to support a claim against an employer, including exclusion from training, exclusion from mentoring or sponsorship programs, exclusion from fellowships, and selection for interviews (including placement on candidate slates).

For employers, this means that, according to the DEI Technical Assistance Documents, any benefit or resource provided to an employee or applicant (including interns and training or apprenticeship program participants) who is a member of a protected class must be made equally available to all employees who are not part of that protected class. The DEI Technical Assistance Documents suggest that employers should ensure that any fellowships or internship opportunities, leadership training programs, mentorship programs, or other resources intended to support underrepresented groups are equally open to persons outside those groups. Messaging surrounding any employment-related opportunities should invite participation from all employees regardless of race, sex or any other protected characteristic. Employers are advised not to “sponsor,” whether officially or unofficially, any employee resource groups (“ERGs”) or affinity groups for which membership is restricted based on race, sex or another protected characteristic by, for example, making available company time, facilities, or premises for meetings or other activities, or otherwise encouraging participation in such groups.

According to the DEI Technical Assistance Documents, employers also may not consider race, sex, or any other protected characteristic when selecting applicants for interviews, including the placement or exclusion of applicants from a candidate slate or pool. Employers with policies requiring candidates from underrepresented groups to be considered for employment or leadership roles – policies sometimes colloquially referred to as the “Rooney Rule” after its adoption by the National Football League in 2003 – should assess and reevaluate such policies in light of this new guidance.

What Are the Implications for Employee Resource Groups and Affinity Group-Mentorship Programs?

ERGs are voluntary, employee-led groups designed to bring together individuals with shared identities, experiences, or backgrounds, and especially those individuals that may historically be underrepresented in certain fields. A few common examples include groups for veterans, LGBTQ+ employees, women, employees of color, or employees who are caregivers.

The DEI Q&A takes aim at certain ERGs, stating that Title VII prohibits employers from classifying employees or applicants based on protected characteristics “in a way that affects their status or deprives them of employment opportunities.” In doing so, the DEI Q&A effectively proscribes “employee activities which are employer-sponsored (including by making available company time, facilities, or premises, and other forms of official or unofficial encouragement or participation), such as employee clubs or groups.” Moreover, the DEI Q&A proposes that “unlawful segregation” can include limiting membership in workplace groups, such as ERGs or other employee affinity groups, to certain protected groups, and directs employers to ensure that “employees of all backgrounds . . . have equal access to workplace networks.” Similarly, employers 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.” This is the case even if separate groups receive the exact same programming content or amount of employer resources.

While there is no further detailed EEOC guidance addressing compliance for ERGs beyond the DEI Technical Assistance Documents, the documents provide a lens through which employers can identify and avoid potential risks. In light of heightened scrutiny and investigations targeted at dismantling DEI initiatives, employers are advised to assess their efforts through a privileged review and make adjustments if necessary or prudent. As a general matter, ERGs should be organized and operate in such a way that employees have equal access to the same networks, training, and opportunities regardless of protected status. According to the DEI Technical Assistance Documents, ERGs and any related events or programs should be open to all employees or potential applicants, not just those from specific backgrounds or with shared life experiences, and attendance at such events should not be restricted on the basis of any protected characteristic.

Some companies may choose to dismantle existing ERGs, but neither the DEI Technical Assistance Documents nor applicable laws necessitate this course. Other companies may opt to issue statements reaffirming their commitment to lawful DEI principles (perhaps using less charged wording) and ERGs. Such statements may serve a dual purpose: demonstrating adherence to Equal Employment Opportunity obligations and while maintaining a commitment to lawful DEI efforts. Regardless of the approach taken, all communications should be carefully considered and developed to align with the employer’s goals in light of legal considerations.

May Employers Continue to Provide Workplace Training Related to DEI Topics?

Yes. While the DEI Technical Assistance Documents neither define “DEI trainings” nor provide examples of such trainings, they indicate that employers can continue to provide workplace trainings related to certain DEI topics so long as employers do not (i) exclude employees from participating in such trainings based on their race, sex or any other protected characteristic, or (ii) separate employees into groups based on race, sex or any other protected characteristic when administrating such trainings (notably, even if the separate groups are receiving the same programming content or amount of employer resources).

Workplace trainings related to anti-discrimination, anti-harassment, and reasonable accommodations should not be impacted by the DEI Technical Assistance Documents, given that the content of such trainings are primarily driven by federal, state and local anti-discrimination and anti-harassment laws. Certain of these laws require that such trainings be conducted regularly for all private sector employees. For example, both California and New York require regular anti-harassment trainings for employees.

Other DEI-related trainings on topics such as implicit bias, sensitivity, and diversity, equity and inclusion, should be carefully reviewed in light of the new guidance. The Joint Statement states that DEI trainings may give rise to a “colorable hostile work environment claim,” but does not provide additional guidance or concrete examples of how such trainings could constitute harassment. For such trainings to rise to the level of a hostile work environment under federal law, the conduct would need to be (i) based on a legally protected characteristic, and (ii) so severe or pervasive so as to create a work environment that both a reasonable person would consider intimidating, hostile, or abusive, and the employee making the claim actually found to be hostile.

Employers may still conduct trainings related to certain DEI-related topics; however, unless such trainings are required by federal, state or local law, employers should consider whether to mandate attendance. Making such trainings optional for employees may reduce the risk of retaliation claims, given that the Joint Statement explicitly states that an employee’s “reasonable opposition to a DEI training” may constitute protected activity for purposes of retaliation under Title VII.

What if an Employee Raises a Complaint about Actual or Perceived DEI-Related Discrimination?

Employers should treat reasonable, good faith complaints of actual or perceived DEI-related discrimination just as they would any other complaint of alleged discrimination or harassment. According to the DEI Technical Assistance Documents, opposition to actual or perceived DEI-related discrimination may constitute protected activity for purposes of retaliation under Title VII, so long as the employee provides a fact-specific basis for their belief that the employer’s DEI-related policy, program, or training violates the law. The DEI-related policy, program, or training need not actually violate the law to invoke Title VII’s anti-retaliation provision. The employee need only have a good faith, reasonable belief that the employer’s policy is unlawful to be protected. Thus, as with any reasonable, good faith discrimination or harassment complaint, employers should ensure that the complainant is not retaliated against for raising concerns.

There are practical steps employers can take to reduce the risk of DEI-related retaliation claims. For example, making certain DEI-related trainings optional may mitigate the risk of a retaliation claim by removing any disciplinary implications associated with declining to attend a mandatory training. Additionally, employers should be cautious when considering participation in DEI-related activities in performance reviews, evaluations, or promotion decisions to ensure that any such metrics do not negatively impact employees who may have engaged in protected activity by declining to attend such activities in protest. Employers should consult counsel before taking any adverse employment actions (such as placing an employee on a performance-improvement plan, changing an employee’s work location or responsibilities, or terminating an employee’s employment) following any form of DEI-related discrimination or hostile work environment complaint.

Employers can further protect themselves from DEI-related retaliation claims by implementing policies and programs that comply with federal, state and local anti-discrimination laws. For example, courts have held that opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for their reasonable, good faith belief that the training violates Title VII. Thus, training programs that are inclusionary and otherwise comply with applicable anti-discrimination laws face less risk of a viable retaliation claim from employees who might generally oppose such programs based on their titles alone.

Although DEI-related retaliation claims may increase in light of the Joint Statement’s focus on DEI policies, programs, and trainings, legally compliant policies, programs, and trainings still serve as an effective means by which to lessen the risk of discrimination, harassment, and retaliation claims.

Do the DEI Technical Assistance Documents Create Binding Law?

The DEI Technical Assistance Documents are not legally binding and do not change Title VII (or any other federal, state, or local antidiscrimination statutes) or existing judicial precedent. The DEI Technical Assistance Documents do, however, provide critical insight into how the EEOC will likely seek to enforce Title VII with respect to DEI programs, policies, and practices. By using specific examples, the EEOC is warning private employers about the types of activities that will be more heavily scrutinized by government investigators and encouraging employees to bring claims on the basis of certain DEI activities. Private employers can and should use the DEI Technical Assistance Documents as a roadmap for the programs and practices that should be closely reviewed by experienced employment lawyers to avoid potential investigations or litigation.

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