EEOC issues guidance on “illegal DEI”

The Equal Employment Opportunity Commission (EEOC) has released guidance that sheds some light on the types of diversity, equity and inclusion (DEI) programs and initiatives the Trump administration considers to be illegal.

The move comes after a period of uncertainty, as multiple executive orders (EOs) targeted “illegal DEI and DEIA policies” without defining what would constitute illegal DEI. Parts of those executive orders were blocked by a nationwide injunction, but the 4th US Circuit Court of Appeals stayed the injunction on March 14, allowing the administration to proceed with the directives in the EOs.

According to the new guidance, a DEI initiative may be unlawful under Title VII of the Civil Rights Act of 1964 if it “involves an employer…taking an employment action motivated – in whole or in part – by race, sex, or another protected characteristic.” An employee only needs to show some employment-related injury or harm to have a potential discrimination claim, the guidance states.

An employer may not cite “general business interests in diversity and equity (including perceived operational benefits or customer/client preference” as a justification for programs that violate Title VII, according to the guidance. Nor do DEI-related considerations of race, sex or another protected characteristic need to be the sole or deciding factor for an employment action to constitute unlawful discrimination.

The prohibition against employment actions motivated by race, sex or another protected characteristic is nothing new. But the interpretation of Title VII’s basic command as barring many voluntary employer DEI programs represents a significant shift.

In addition to major employment decisions like hiring, firing, promotion, demotion, compensation and benefits, the guidance cautions that the following DEI-related initiatives, among others, could constitute unlawful discrimination if based on a protected characteristic:

• Access to or exclusion from training (including training characterized as leadership development programs), mentoring, sponsorship or workplace networking
• Selection for internships, including those labeled as fellowships or summer associate programs (common in law firms)
• Limiting membership in employee resource groups (ERGs) and similar affinity groups to individuals with certain protected characteristics
• Selection for interviews, including placement or exclusion from a candidate slate or pool
• Job duties or work assignments

While the guidance does not state that DEI training is necessarily unlawful, it warns that such training could create a hostile work environment if it is discriminatory in design, content or execution. Hostile work environment is a legal standard for establishing a harassment claim.

The guidance does not create or modify existing law or compliance obligations, but it provides insight into the agency’s current thinking and likely enforcement targets. On March 17, the EEOC sent letters to 20 law firms alleging that some of their employment practices could constitute the kinds of DEI initiatives the agency now views as unlawful.