By Jacob Claveloux

As part of its ongoing efforts aimed at limiting Diversity, Equity, and Inclusion (“DEI”) efforts by employers and other institutions, the federal government, through the Equal Employment Opportunity Commission (“EEOC”) and the Department of Justice (“DOJ”), has recently published a press release focused on “educating the public about unlawful discrimination under Title VII of the Civil Rights Act related to DEI in the workplace. 

For the press release, please see: (https://content.govdelivery.com/accounts) For the two technical assistance documents, please see: (https://www.eeoc.gov/what-do-if-you-experience-discrimination;https://www.eeoc.gov/wysk/what-you-should-know-about-dei-related-discrimination-work)

 Though not unexpected given President Trump’s campaign platform and various ongoing efforts by the administration (see, for example, requiring state and local educational authorities to certify their compliance with antidiscrimination obligations under Title VI of the Civil Rights Act to continue receiving federal financial assistance at: https://www.ed.gov), the joint EEOC and DOJ guidance broadly describes practices that may constitute “DEI-related discrimination” but does not define DEI or explain what DEI initiatives, if any, would not run afoul of the current scrutiny.  The Frequently Asked Questions (“FAQs”) portion of the guidance lists “DEI initiatives, policies, programs or practices” that may violate Title VII through disparate treatment in:

• hiring, firing, promotion, demotion, compensation, fringe benefits;
• access to or exclusion from training including leadership development programs;
• access to mentoring, sponsorship, or networking opportunities;
• internships, “fellowships” or “summer associate” programs;
• selection for interviews, including placement or exclusion from a candidate pool; and
• job duties or work assignments.

The FAQs go on to say that employer sponsored activities such as Employee Resource Groups (“ERGs”), Business Resource Groups (“BRGs”), or other employee affinity groups, that limit membership to certain protected groups, can be considered to be unlawful segregation under Title VII and that employers may not legally justify any of the foregoing actions (or other forms of DEI-related discrimination) based on business necessity, an effort to create or support diversity, or client, customer, or coworker preference.  The guidance also asserts that DEI trainings may be considered discriminatory by creating a “hostile work environment.” Some of the guidance is also focused on clarifying that Title VII applies to all workers, not just those that are part of minority groups, and states that the “EEOC’s position is that there is no such thing as ‘reverse’ discrimination; there is only discrimination.”

 As employer efforts aimed at DEI-related causes have become widespread in the last few years, the new federal guidance makes it difficult for employers to know what diversity, equity, and inclusion efforts may be maintained or modified to stay compliant with this current interpretation of Title VII protections.  Efforts to counter the new guidance are already underway, with one example being a statement issued by ten former high-level EEOC officials, posted on April 3, 2025, stating that in their view, “employers lawfully may – and indeed should – [continue to] take proactive steps to identify barriers that have limited the opportunities of applicants and employees based on any protected characteristic” (https://www.chaifeldblum.com/wp-content/uploads/2025/04/Statement-of-Former-EEOC-Officials-on-DEI-04.03.25-1.pdf). 

 We believe that the administration’s interpretation of Title VII reflected by this guidance likely will be challenged in court, but to date there has not been any court action or ruling that has produced any clarity. Until this matter is litigated in the courts so that there is a definitive ruling, the administration’s guidance creates difficult legal and practical issues for any institution that has DEI practices as to how to proceed in light of this guidance. Indeed, given the legal issues presented, entities should consult with legal counsel when considering this DEI guidance and other related federal orders and guidance.