On March 19, 2025, the Equal Employment Opportunity Commission (“EEOC”) released two “technical assistance” documents titled, “What You Should Know About DEI-Related Discrimination at Work” and “What To Do If You Experience Discrimination Related to DEI at Work” (“technical assistance”).  The technical assistance follows President Trump’s issuance of Executive Order 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”) on January 21, 2025, in which the president called for “ending illegal discrimination and preferences, including DEI” in the private sector.  The EEOC and Department of Justice announced in a press release that the purpose of the technical assistance is “to help educate the public about how well-established civil rights rules apply to employment policies, programs, and practices—including those labeled or framed as ‘DEI.’”

Citing Title VII of the Civil Rights Act of 1964, the technical assistance states that an employer’s DEI initiatives, policies, programs, or practices may be unlawful under Title VII if they involve an employer “taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.”  The technical assistance also states, citing to Muldrow v. City of St. Louis, Missouri, et. al., 144 S. Ct. 967, 974, that to allege a DEI-related claim of discrimination under Title VII, employees must show “some injury” or “some harm” affecting their “terms, conditions, or privileges” of employment, which is to be “interpreted broadly.”  The prohibition against “DEI-related disparate treatment” extends to traditional employment actions such as hiring, firing, and demotion, but also extends, according to the technical assistance, to actions that have not previously formed the basis of successful discrimination claims under Title VII, such as access to or exclusion from training (including training characterized as leadership development programs); access to mentoring, sponsorship, or workplace networking/networks; and selection for interviews, including placement on or exclusion from a candidate “slate” or pool.

Largely tracking memoranda issued by the Office of Personnel Management on February 5, 2025 (the “OPM memo”) and Attorney General Pam Bondi on February 5, 2025 (“DOJ memo”), the technical assistance provides additional examples of employer-sponsored activities that could potentially form the basis of a claim under Title VII, including making available company time, facilities, or premises for Employee Resource Groups, Business Resource Groups, or other employee groups or clubs whose membership is limited based on protected characteristics, or separating employees into groups or cohorts based on protected characteristics for training or programming purposes, even if the separate groups receive the same programming content or resources.  The technical assistance explains that “[e]mployers also should ensure that ‘employees of all backgrounds . . . have equal access to workplace networks,’” suggesting, as described in the OPM memo, that employees should be permitted to form affinity or resource groups organized around any demographic characteristic.

The technical assistance also cautions that an employer’s “DEI-related training” could violate Title VII by contributing to a hostile work environment if the training is “discriminatory in content, application, or content,” though the Tenth Circuit, in affirming a motion to dismiss one of the few employment discrimination cases based on a training requirement, has clarified that “race-based training programs”—such as those that state “all whites are racist [and] that white individuals created the concept of race in order to justify the oppression of people of color”—can create “hostile workplaces” when “official policy is combined with ongoing stereotyping and explicit or implicit expectations of discriminatory treatment.” Young v. Colorado Dep’t of Corrections, 94 F.4th 1242, 1245 (10th Cir. 2024).   

As with opposition to other types of conduct made unlawful by Title VII, the technical assistance notes that opposing a policy or practice labeled as “DEI” could also constitute protected activity and form the basis of a retaliation claim if the policy or practice is discriminatory.  Of note, the technical assistance asserts that employers cannot justify taking an employment action based on protected characteristics because the employer has a “business necessity” or interest in diversity, including preferences or requests by the employer’s clients or customers.  This includes “basing employment decisions on the racial preferences of clients, customers, or coworkers.” 

While the technical assistance does not change existing law under Title VII, it confirms with greater clarity certain activities related to promoting diversity, equity, and inclusion that the current Chair of the EEOC deems potentially problematic.  EEOC technical assistance documents are issued upon approval of the Chair of the EEOC and are not voted upon by the EEOC.  The technical assistance documents do not have the force and effect of law and are not meant to bind employers, but signal that the EEOC will review and investigate charges of discrimination that include allegations relating to these activities.  However, employers will also likely continue to face charges from minority employees who feel that they have not been treated fairly in the workplace or been afforded equal employment opportunities as required by Title VII.  Accordingly, employers should continue to assess applicant and labor flow metrics and carefully ensure that efforts aimed at broadening recruitment, ensuring fairness in the application process, and supporting equal promotion, retention, and success at work are addressing the needs of all employees, regardless of background.

If you have questions about programs and practices that may be implicated by this technical assistance, please contact members of the employment practice group.