by CUPA-HR | March 20, 2025
On March 19, the Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) released two technical assistance documents intended to educate “the public about unlawful discrimination related to ‘diversity, equity, and inclusion’ (DEI) in the workplace.” The two documents aim to inform the public about how civil rights rules and laws like Title VII of the Civil Rights Act of 1964 apply to employment policies, programs and practices, including those labeled or framed as “DEI.”
Title VII prohibits employment discrimination based on protected characteristics, including race, color, religion, sex or national origin. As the agencies note in both documents, DEI is a broad term that is not defined under statute. The technical assistance explains that DEI 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 race, sex, or other protected characteristic. The agencies emphasize that Title VII’s protections apply equally to all racial, ethnic, and national origin groups, as well as both sexes, and that unlawful discrimination may exist no matter which employees are harmed.
Technical Assistance Document #1: The EEOC describes what DEI-related discrimination looks like.
The first document, “What To Do If You Experience Discrimination Related to DEI at Work,” explains how DEI-related practices may manifest as discrimination under Title VII.
- Title VII bars disparate treatment: Any employment action motivated in whole or in part by race, sex, or another protected characteristic that is taken in the context of the terms, conditions, or privileges of employment may be unlawful.*
- Title VII prohibits limiting, segregating, and classifying: Any action taken that limits, segregates, or classifies employees based on race, sex, or other protected characteristics in a manner affecting their status or depriving them of employment opportunities may be unlawful. Examples of these practices include the establishment of workplace groups (employee resource groups or employee affinity groups) that limit membership to a protected group or groups, as well as the separation of employees into groups based on a protected characteristic when administering trainings or other privileges of employment. The document makes clear that the latter may still violate Title VII even if the separate groups receive the same training or programming content.
- Title VII prohibits workplace harassment: Workplace harassment is illegal when it results in an adverse change to a term, condition, or privilege of employment, or it is so frequent or severe to reasonably be considered intimidating, hostile, or abusive. The document explains that DEI training may give rise to a hostile work environment claim and that harassment may occur when an employee is subject to unwelcome remarks or conduct based on protected characteristics.
- Title VII prohibits employer retaliation: The agencies explain that reasonable opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for their belief that the training violated Title VII, and that an employer may not retaliate if an employee participates in an EEOC investigation or files an EEOC charge.
The document reaffirms that Title VII protects employees, potential and actual applicants, interns, and training program participants. It directs individuals who suspect to have experienced DEI-related discrimination to contact the EEOC “promptly” as claimants have 180 to 300 days to file a claim depending on whether a state or local agency enforces a law that prohibits employment discrimination on the same basis.
Technical Assistance Document #2: The EEOC answers additional questions about DEI-related discrimination in the workplace.
The second technical assistance document, titled “What You Should Know About DEI-Related Discrimination At Work,” expands upon the information provided in the technical assistance document discussed above and answers a number of additional questions on how Title VII intersects with DEI-related practices in the workplace.
Notably, the document addresses questions surrounding employers’ DEI-related considerations of race, sex, and other protected characteristics when the protected characteristic wasn’t the “sole or deciding factor” for the employers’ action. The document states that “race or sex (or any other protected characteristic under Title VII) does not have to be the exclusive (sole) reason for an employment action or the ‘but-for’ (deciding) factor for the action” for there to be unlawful discrimination. Additionally, the agencies explain that workers only need to show “some injury” or “some harm” affecting their terms, conditions or privileges of employment to allege a colorable claim of discrimination under Title VII.
The document also makes clear that an employer may not justify an employment action simply on the basis that they have a business necessity or interest in “diversity” as Title VII prohibits employers from using business necessity as a defense against intentional discrimination claims. Likewise, the agencies explain that “client or customer preference is not a defense to race or color discrimination” and that “basing employment decisions on the racial preferences of clients, customers, or coworkers constitutes intentional race discrimination.”
CUPA-HR will continue to monitor for updates related to Title VII enforcement from the EEOC.
*The terms and conditions of employment include: hiring; firing; promotion; demotion; compensation; fringe benefits; exclusion from training; exclusion from mentoring or sponsorship programs; exclusion from fellowships; selection for interviews (including placement on candidate slates).
