EEOC and DOJ Release Guidance on “Illegal DEI”

On March 19, 2025, the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) issued a joint press release accompanied by two new technical assistance documents explaining this Administration’s view of how Title VII of the Civil Rights Act of 1964 applies to Diversity, Equity and Inclusion (DEI) policies, programs and practices.

The technical assistance documents are aimed primarily at employees but can also serve as a roadmap for employers to identify DEI policies and practices that are likely to be scrutinized by the EEOC. The first, titled, “What To Do If You Experience Discrimination Related to DEI at Work,” provides information on how individuals can file a complaint, and several examples of how DEI policies, programs or practices may be unlawful if motivated by race, sex, or other protected trait. The second, titled, “What You Should Know About DEI-Related Discrimination at Work,” is formatted as a more detailed “FAQ” document that provides additional information and examples.

Importantly, since the EEOC currently lacks a quorum, these technical assistance documents were issued by EEOC Acting Chair Andrea Lucas in her capacity as the head of the agency. As a result, the documents were not approved by the other current EEOC commissioner, Kalpana Kotagal.

A few important takeaways from these new resources:

• The FAQ document acknowledges that the term DEI is not defined by Title VII. The guidance goes on to say that DEI policies, programs and practices may violate Title VII where they involve an employment action motivated – in whole or part – by the race, sex, or other protected trait of an applicant and employee.
• The first technical assistance document specifically highlights that using quotas or “balancing a workforce by race, sex, or other protected traits” will likely violate Title VII.
• The documents provide a broad list of the types of employment actions that could be covered by a disparate treatment claim, including:

• Hiring, Firing, Promotion and Demotion;
• Compensation and Fringe benefits;
• Access to or exclusion from training and leadership development programs;
• Access to mentoring, sponsorship, or workplace networking/networks;
• Internships;
• Selection for interviews, placement or exclusion from a candidate “slate” or pool; and
• Job duties or work assignments.
• The FAQ document restates the EEOC’s view that Title VII protects all races and sexes and that there is not a higher standard of proof for so-called “reverse discrimination” claims.
• There is a specific FAQ on employee resource groups. The guidance warns that these types of employer-sponsored groups can violate Title VII’s prohibition against segregating employees based on race, sex, or other characteristics where membership is limited to one group.
• Similarly, the guidance highlights that workers should not receive separate training, even if the employees receive the same programming content or amount of employer resources.
• The FAQ document outlines the limited affirmative defense for bona fide occupational qualifications based on religion, sex, or national origin, but warns that client or customer preference is not a defense to a race or color discrimination claim under Title VII. This same FAQ cautions that Title VII does not include a specific “diversity exception” and that the Supreme Court has not specifically ruled on whether diversity considerations could justify race-based employment actions.
• Finally, the FAQ document cautions that DEI training can create a hostile work environment although the document does not provide specific facts that might give rise to such a claim.

While much of the technical assistance documents restate existing EEOC policy and litigation positions, the documents are clearly organized to carry out EEOC Acting Chair Andrea Lucas’s goal of "rooting out unlawful DEI-motivated race and sex discrimination." Employers should review the document carefully as part of a broader review of their DEI policies, programs, and practices.

Our team at Berkshire and Resolution Economics is uniquely suited to meet today’s challenges in this area with a deep bench of consultants led by a trio of experts with unparalleled government and consulting experience. Together, they have spent decades advising on the very issues that need to be considered when evaluating or implementing DEI programs, policies, and procedures.