Diversity, Equity, and Inclusion (“DEI”) has been at the forefront of politics and news alike in recent months. On March 19, 2025, the EEOC issued guidance aimed at addressing “illegal” DEI initiatives in employment. The guidance is called “What To Do If You Experience Discrimination Related to DEI at Work.”
Title VII of the Civil Rights Act of 1964 has long prohibited employers from making decisions regarding terms and conditions of employment based on race and sex (among other protected characteristics). Nevertheless, certain individuals were hired and paid at lower rates than similarly qualified individuals from other groups. As a result, certain employers have utilized DEI programs in an attempt to reduce the disparities. The Trump administration has targeted these DEI efforts to the extent that they give preference to any individual based on their race, sex, or other protected characteristics. As such, an initiative, policy, program, or practice is unlawful if it involves an employer or other covered entity taking an employment action motivated – in whole or in part – by a protected characteristic.
In the EEOC’s guidance, the Commission states that “DEI-related disparate treatment” could include disparate treatment in hiring, firing, promotion, demotion, compensation, and fringe benefits, as well as disparate treatment in:
- Access to or exclusion from training (including training characterized as leadership development programs);
- Access to mentoring, sponsorship, or workplace networking/networks (including affinity groups);
- Internships, including internships labeled as “fellowships” or “summer associate” programs; and
- Selection for interviews, including placement or exclusion from a candidate “slate” or pool.
The EEOC advises employers to 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.” Moving forward, employers are advised that they cannot use general business interests, or customers’ and clients’ preferences, to treat employees disparately based on a protected characteristic.
Additionally, the EEOC, in partnership with the Department of Justice, jointly published an information sheet for employees detailing what “illegal” DEI looks like. The information sheet encourages employees to file a charge with the EEOC if they suspect they have experienced DEI-related discrimination.
The technical assistance documents published by the EEOC and DOJ change the landscape for employers on whether an action or potential action constitutes “illegal DEI.” Employers should assess their DEI practices and update training and employment practices as necessary. For questions related to these new changes and how they may affect your business, please reach out to the authors of this post or one of the attorneys at MHS.