BlogLine

EEOC and DOJ issue guidance on “DEI-Related Discrimination”

3/26/25

By: Shane Miller

As we noted in Freeman Mathis & Gary’s previous blog posts, the Trump Administration is seeking to eliminate certain Diversity, Equity and Inclusion (DEI) programs (or particular aspects of such DEI programs) from the workplace, including for private employers, government entities, and educational and cultural institutions.

You can review our recent articles here:

• New administration’s anti-DEI initiatives and impact on employers, available at https://www.fmglaw.com/employment/new-administrations-anti-dei-initiatives-and-impact-on-employers/

• Fourth Circuit stays nationwide preliminary injunction barring enforcement of executive orders aimed at eliminating DEI programs, available at https://www.fmglaw.com/employment/fourth-circuit-stays-nationwide-preliminary-injunction-barring-enforcement-of-executive-orders-aimed-at-eliminating-dei-programs/

As part of this effort, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) recently published two documents that are “focused on educating the public about unlawful discrimination related to ‘diversity, equity, and inclusion’ (DEI) in the workplace.” See EEOC and Justice Department Warn Against Unlawful DEI-Related Discrimination, U.S. Equal Employment Opportunity Commission (March 19, 2025), available at https://www.eeoc.gov/newsroom/eeoc-and-justice-department-warn-against-unlawful-dei-related-discrimination.

This administrative guidance carries no independent legal force, but it does provide key insight into the agencies’ position on DEI programs. Specifically, the EEOC and DOJ state that the following DEI practices may be unlawful:

• Taking an employment action motivated (in whole or in part) by race, sex, or another protected characteristic in any aspect of employment, including hiring, promotion, compensation, access to or exclusion from training opportunities (including leadership development programs), firing, demotion, fringe benefits, mentorship/sponsorship/networking programs, interviewing, internship programs, job duties, and work assignments.

• Limiting membership in workplace groups to certain protected groups.

• Separating employees into groups based on race, sex or another protected characteristic when administering DEI or other trainings.

The EEOC and DOJ also assert that providing workplace DEI training can give rise to a hostile work environment claim if the plaintiff can prove that the training was discriminatory in “content, application, or context.”

Furthermore, the EEOC and DOJ state that opposing DEI training may constitute “protected activity” under Title VII, meaning that an employer could face a retaliation claim if the employer takes an adverse action against an individual for opposing DEI training.

The Trump Administration’s efforts against certain DEI programs already face legal challenges, and those cases are working their way through the courts. But given the ongoing, intense focus on DEI programs, employers should consult with experienced legal counsel early and often when questions arise about workplace issues such as:

• Ensuring that employee handbooks and policies comply with the latest legal developments;
• Conducting employee training sessions; or
• Responding to a charge of discrimination.

Attorneys at Freeman Mathis & Gary, LLP will continue to monitor this issue for further developments. For more information or for advice regarding DEI programming, feel free to contact Shane Miller at shane.miller@fmglaw.com or your local FMG attorney.