Introduction

On March 19, 2025, the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) jointly issued informal guidance called, “What To Do if You Experience Discrimination Related to DEI at Work.” While the guidance broadly describes what could constitute discriminatory diversity, equity, and inclusion programs, it is accompanied by a longer question and answer document from the EEOC on the subject that included citations supposedly supporting the government’s position (the EEOC Q&A). These two documents followed a series of letters issued on March 17, 2025, by Andrea Lucas, acting chair of the EEOC, to numerous law firms (hereinafter, the Law Firm Letters) in which the EEOC identified various actions allegedly taken by the law firms that the EEOC considers concerning, and the EEOC requested that the law firms produce documentation regarding many facets of their hiring, promotion, retention, and other employment practices, going back many years.

Taken together, the guidance and the EEOC Q&A identify, in broad terms, what the administration considers to be unlawful DEI practices. For the most part, the conclusions are consistent with what would traditionally be considered unlawful under Title VII of the Civil Rights Act of 1964, as amended, and other anti-discrimination laws. On the other hand, the guidance notes that employees can claim retaliation for challenging DEI training and other programs. This could have a broad impact depending on how far employees go to challenge trainings and other programs.

Perhaps the most far-reaching aspect of the foregoing documents is the information and practices cited in the Law Firm Letters that the EEOC is relying upon to conduct its investigations. As EEOC Chairperson Lucas noted in a news release issued with the guidance, there may be “serious implications for some very popular types of DEI programs.” While the investigations are directed at law firms, the information requested also involves the practices of their clients. As such, all employers need to pay attention to what is being investigated.

How Does the Guidance Identify Potentially Discriminatory DEI?

The guidance begins by setting forth the non-controversial proposition that any employment action that is motivated in whole or in part by an applicant’s or employee’s race, sex or other protected classification is unlawful. This includes the use of “quotas or otherwise ‘balancing’ a workforce by race, sex or other protected classifications.” While it is unclear exactly what the EEOC means by “balancing a workforce,” presumably it is where “targets” are actively used to increase the percentages of underrepresented groups in the workforce.

Next, the guidance discusses unlawful limiting, segregating, and classifying. In this category, the guidance states it is unlawful to limit membership in workplace groups, including Employee Resource Groups (ERGs) and other affinity groups, or to segregate groups of employees based on protected characteristics when administering DEI or other trainings. Given that many ERGs and affinity groups have been created to assist and mentor employees in protected classifications, this is an area where employers definitely need to review their programs to make sure they are compliant with the law.

The guidance also prohibits harassment that is based on race, sex, or other protected classification. Again, on its face, this is entirely consistent with the current law. The EEOC Q&A notes that there is no such thing as “reverse discrimination,” which is traditionally the term used to describe bias against whites or other “majority” classifications. Rather, there is only “discrimination,” and the same standard of proof applicable to all discrimination claims, regardless of the person’s race.

Finally, the guidance prohibits retaliation against an employee because they have opposed a practice they reasonable consider to be unlawful including, potentially, a DEI practice. Given the uncertainty of what is unlawful or discriminatory DEI practices, this is another area where employers need to act cautiously. The guidance seeks to provide some protection for employers by saying the employee must provide “a fact-specific basis for his or her belief that the training violates Title VII.”

What Training May Constitute Unlawful DEI?

The EEOC Q&A cites to two cases involving unlawful or potentially unlawful DEI training. In Hartman v. Pena, 914 F. Supp. 225 (N.D. Il. 1995), as part of a sensitivity training on sexual harassment, a male employee was forced to walk through what he described as a “gauntlet of women” who would make comments on and touch his body. They then rated the men based on their looks. In denying summary judgment for the employer, the court held that, at a minimum, there was an issue “at what point the simulation [of harassment] became the act [of harassment]. Id. at 230.

In the second case, which involved a university, the court denied a motion to dismiss where the plaintiff alleged that he was instructed to take race into consideration when grading because “racist structures are quite real in assessment.” In another workshop on multiculturalism, the participants were given hypotheticals on what not to say to students, and every one of the hypotheticals involved a white professor. This was followed by a training video called, “White Teachers are a Problem.” Interestingly, the EEOC Q&A does not cite to the fact that, after discovery, summary judgment was granted to the university in a decision that was issued 13 days before the Q&A was issued.

What Constitutes Unlawful Limitation, Segregation and Classification?

In the Law Firm Letters, the EEOC focused on whether the firms (a) had scholarships and fellowship that were limited to students in various protected classifications, (b) had ERGs and other affinity groups that were limited to members of various protected classifications; and/or (c) required a certain percentage of candidates interviewed or considered be diverse. Among the information requested was whether grade point average cutoffs differed based on an applicant’s race, sex, or other protection classifications.

All of the foregoing actions are presumably taken with the intent to help underrepresented populations in the workforce. However, as noted by Chairperson Lucas in the news release that accompanied the guidance: “no matter an employer’s motive, there is no ‘good’ or even acceptable, race or sex discrimination.” Therefore, employers need to be cognizant of the fact that the EEOC is going to be scrutinizing efforts to promote DEI.

What May “Balancing” of the Workforce Mean?

In the Law Firm Letters, it was noted that after one firm established a Diversity, Equity and Inclusion Plan (DEI Action Plan), the number of ethnic/racial diversity and LGBTQ+ lawyers had increased nine percent in approximately two years. The letter to the law firm put the number “nine” in bold, reflecting that the EEOC apparently considered this “rapid increase” [the EEOC’s words] to be suspect.

In another letter, the EEOC referred to the “astonishing ‘gains’” the law firm had made in regard to its “diverse” workforce. The fact that the word “gains” was put in quotes indicates that the EEOC did not see an increase in diversity as a “gain.”

Based on the foregoing, it is reasonable to conclude that where diversity hiring and promotion targets are emphasized and achieved, the EEOC will consider this evidence of “balancing” the workforce.

One of the pieces of information and documentation requested by the EEOC included whether a firm tied an employee’s performance review or compensation to DEI or diversity efforts.

How May Third Parties Be Affected?

Some of the Law Firm Letters referred to responses that the firms provided to clients that had requested information on the firms’ diversity efforts. In those cases, the EEOC requested the firms to, among other things, “fully identify all clients that have ‘diversity requirements,’ ‘diversity preferences,’ or any demographic-related requirement for matters;” “fully identify all times [the firm] provided the race or sex of [its] employees staffed on a matter to a client;” and/or all "clients which provided an incentive-based program … for achieving or exceeding representation goals.” It is reasonable to assume that the EEOC may use these responses to investigate the clients.

The other area where third parties were noted in the Law Firm Letters involved organizations or publications that “rated” firms based on their diverse workforce and DEI practices. It appears that the EEOC may be using such ratings as a basis for further investigation on the DEI efforts of the firms.

What Are the Key Take Aways from the EEOC’s and DOJ’s Actions?

As we previously stated in our January 29, 2025, Alert titled, “What Now? Critical DEI Considerations for Private-Sector Employers Under Trump Administration 2.0,” how employers should respond to the actions being taken by the EEOC and DOJ depends on the employer’s tolerance for legal risk and the culture of the organization. Therefore, there is no single response that will apply to every employer. Nonetheless, the following are actions that employers should consider undertaking:

1. Consider How You Define “Diversity”: While it may appear to minimize the importance and impact of DEI, words clearly matter. While employers should use language that is responsive to the culture of the organization, consider the potential impact of the language used. For some employers, this has meant not referring to “diversity” at all and, instead, focusing on “inclusion.” Another approach is to simply use the word “diversity,” without further defining it by referring to various protected classifications. This incorporates diversity in its broadest form. If further definition is important to the organization, then consider not limiting the definition to immutable characteristics and/or protected classifications.
2. Examine How Workforce Targets Are Used: For employers who continue to maintain affirmative action plans or otherwise have targets relating to the diversity of the workforce, determine how they are defined and implemented, so that they are not challenged as being a way to “balance the workforce,” including:

a. Do the people responsible for establishing and trying to meet the targets understand that they are just “targets,” and not quotas? If not, provide training to those individuals.

b. Do managers and others understand that achieving the targets should be based on “good faith” efforts, without a race, sex, or other protected characteristic being considered a specific favor in making decisions? If not, provide training to managers and others involved with trying to achieve those targets. For example, there should not be different thresholds for academic achievement (e.g., grade point average) or work history for women or members of a minority group.

c. Do not require a certain percentage of candidates for hire or promotion to be women or members of a protected group, in a manner that excludes men or employees in a different group. For example, you may have a “goal” of having one woman and/or minority group member be a candidate for each position. However, like the “Rooney Rule” in football, make sure that all such candidates are equally qualified and do not exclude qualified candidates from other groups.

3. Open Employee Resource and Other Affinity Groups to All Employees: To reduce the risk of claims of unlawful segregation and classification, make sure that these groups are open to all employees, even if their focus is on how to help particular groups of employees.
4. Determine Whether to Recognize Managers and Employees for Their Commitment to DEI: It is not unlawful per se to evaluate or compensate employee based on their commitment to DEI. The evaluation or compensation process, however, must clearly define what constitutes “success,” so that people are being rewarded for their “inclusion” efforts, without having “excluded” anyone in the process.
5. Other Terms and Conditions of Employment: Make sure other aspects of employment are open to all employees. This would specifically include mentoring, bonuses, and scholarship programs. Even if only certain employees participate in a mentoring program, as long as the program is open to all, it should not be deemed an unlawful segregation. With regard to scholarships, consider alternative ways to assist people in need, without focusing on race, ethnicity, or sex. For example, a leading university recently stated that it would raise the income levels for families that did not have to pay tuition as a way to increase diversity.
6. Review Training Programs: Training programs that target a particular group are clearly going to be challenged. An example of this is the training program discussed above titled, “White Teachers are a Problem.” A training that focuses on each employee’s implicit bias may be challenged by an employee who does not believe he or she has any inherent bias. However, as long as it tries to address implicit bias without regard to a particular person’s race, ethnicity, or gender, it should not be considered discriminatory classification of employees.
7. Do You Publicize Your DEI Achievements: The answer to this question is clearly a matter of the employer’s culture and risk assessment. That is because publicizing achievements invites scrutiny. For this reason, many employers have announced that they will no longer respond to organizations that seek diversity statistics as a way to rank the employer’s efforts. However, publicizing DEI achievements are not, in themselves, unlawful, as long as the underlying efforts are not unlawful.