By Jamila M. Brinson, Dawn S. Holiday, and Ariel Perez

Following multiple executive orders from President Donald Trump concerning Diversity, Equity, and Inclusion (DEI), employers have been eagerly awaiting agency guidance to clarify the scope and implications of what is considered “illegal DEI” in the workplace.

On March 19, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) issued two technical assistance documents: “What to Do If You Experience Discrimination Related to DEI at Work^[1]“ and “What You Should Know About DEI-Related Discrimination at Work.”^[2] These documents are designed “[t]o help educate the public about how well-established civil rights rules apply to employment policies, programs, and practices—including those labeled or framed as ‘DEI.’”^[3]

EEOC Acting Chair Andrea Lucas has taken the position that “far too many employers defend certain types of race or sex preferences as good, provided they are motivated by business interests in ‘diversity, equity, or inclusion.’ But no matter an employer’s motive, there is no ‘good,’ or even acceptable, race or sex discrimination.”

This article offers an overview of the guidance, highlighting key points and actionable steps for employers concerning compliance.

What the EEOC and DOJ Said – And Why it Matters Now

The one-page guidance document, jointly issued by the EEOC and DOJ, advises employees on “What To Do If You Experience Discrimination Related to DEI at Work.” The second, more comprehensive document, titled “What You Should Know About DEI-Related Discrimination at Work,” is presented in a Q&A format and addresses what has been identified as common questions about “DEI-related discrimination.” Together, these documents emphasize that “DEI” has no special legal definition or exemption under Title VII of the Civil Rights Act of 1964.

The guidance states any workplace policy labeled as DEI must still comply with Title VII’s core rule: employers may not base employment decisions or treatment on an individual’s protected characteristics, such as race or sex, whether favoring or disfavoring any group. The guidance relies on existing EEOC policies and Supreme Court precedence to illustrate that Title VII’s protections apply to all employees—whether they belong to a majority or minority group. The EEOC’s position is that “there is no such thing as ‘reverse’ discrimination; there is only discrimination” under the law.^[4]

In short, the agencies caution that even well-meaning DEI programs cannot involve practices that Title VII forbids. The guidance identifies the following specific prohibited practices, identifying the stated purpose of ensuring that employers understand the legal boundaries within which DEI initiatives must operate:

Prohibited Practices Under Title VII

Disparate Treatment and Unlawful Preferences: The guidance states that employers violate Title VII if a DEI policy or practice involves taking any employment action motivated – even in part – by an individual’s race, sex, or other characteristic protected under Title VII. In practice, the guidance provides this means no employment decision may be based on protected characteristics, regardless of positive intentions. Explicit quotas or “balancing” the workforce by race or gender are unlawful. Likewise, more subtle preferences (for example, giving an edge in hiring or promotion to increase diversity representation) are illegal if a protected trait tipped the scale. The EEOC and DOJ take the position that Title VII’s ban on disparate treatment covers all aspects of employment, including:

• Hiring and firing decisions – e.g. selecting or rejecting candidates based on race, sex, or other protected status;
• Promotions, demotions, and compensation – any adjustment in role or pay cannot be because of a protected trait;
• Opportunities and benefits – such as access to training programs, mentorships, internships or high-profile assignments, which must be awarded on neutral criteria; and
• Terms or conditions of employment – described as any other work-related perks or requirements, from project assignments to inclusion in talent development initiatives (like fellowships, training, mentoring, or sponsorship programs), must be free from unlawful bias.

Limiting, Segregating, or Classifying Employees: The guidance proffers that Title VII also specifically prohibits practices that segregate or classify employees by protected characteristics in a way that affects their employment opportunities. The guidance emphasizes an employer cannot limit membership in an employee resource group (ERG) or affinity group only to employees of a certain race, ethnicity, or gender. The guidance states that outright exclusion of employees from membership in such groups (including allies or those outside the demographic) may cross the line into unlawful segregation.

Similarly, the guidance states it is unlawful to separate or segment employees by race or sex for training sessions, workshops, or other programs – “even if the separate groups receive the same programming content or amount of employer resources.”^[5]

Hostile Work Environment Considerations: The guidance cautions that certain DEI activities – for example, a mandatory training program – might give rise to a harassment claim if the training is “discriminatory in content, application, or context.” In other words, if a diversity training includes unwelcome remarks, stereotypes, or other conduct targeting employees because of their race, sex, or other protected trait, it could be found to be harassment.

The guidance notes that courts have allowed hostile environment claims based on problematic diversity trainings to proceed, especially where employees can point to specific ways the training was biased or derogatory. ^[6]

Retaliation and Mixed-Motive Clarifications

Protected Employee Opposition and Retaliation: The joint guidance also reminds employers that employees who object to perceived discrimination – including discrimination related to DEI programs – are protected from retaliation. Title VII’s anti-retaliation provisions cover anyone who engages in “protected activity,” generally including filing an internal complaint or filing an EEOC charge, participating in an EEOC investigation, or simply opposing a practice made unlawful under Title VII. The guidance states an employee does not lose protection merely because the practice they opposed was part of a DEI program. The EEOC states reasonable opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for the belief that the training violates Title VII.

“Mixed-Motive” Decisions and No DEI Exception: The guidance clarifies that an employer cannot defend a discriminatory decision by claiming a protected characteristic was only one of multiple factors. Likewise, the agencies emphasize there is no special “business necessity” or “diversity” defense to “intentional discrimination.” In short, an employer cannot lawfully say, “We need to hire/promote this person because of their race or gender for diversity reasons.” The guidance takes the position that no matter how well-intentioned, taking action because of race, sex, or any protected trait is illegal under Title VII. Pursuant to this guidance, employers should ensure their DEI strategy or goals do not require or encourage their decision-makers to engage in the outlined conduct.

Practical Takeaways for Employers

With an increased focus on what has been referred to as DEI-related discrimination, both by members of the plaintiff’s employment bar as well as the EEOC and DOJ, the release of these technical assistance documents serve as a timely reminder for employers to review all workplace policies, including DEI policies, practices and initiatives through the lens of legal compliance. Below are key steps and considerations to help ensure your DEI programs remain aligned with the law and do not run afoul of Title VII:

• Audit DEI Policies and Practices for Neutrality: Examine all hiring, promotion, and recruiting programs to confirm they do not grant preferences or set quotas based on protected characteristics. Diversity goals should not translate into formulas that automatically favor (or disfavor) candidates due to race, sex, or other protected traits. Focus on neutral, merit-based criteria in all employment decisions, such as performance.
• Make Opportunity Inclusive, Not Exclusive: Ensure that development opportunities – training programs, mentorships, stretch assignments, internships – are open to all employees regardless of background. Do not restrict participation in employee resource groups or networking events by protected characteristic, such as race or gender. Instead, encourage broad involvement and allyship. The EEOC recommends providing training, mentoring, and networking access to employees of all backgrounds, so everyone has equal opportunity to grow and advance.
• Vet Diversity Training Content: Review any DEI training or workshop materials, whether facilitated by an outside vendor or done internally, for content that could be perceived as singling out or stereotyping any group. Avoid exercises or slides that attribute generalized qualities or faults to a particular race, gender, or ethnicity, even in the interest of discussion. Training should foster understanding and respect, not blame or alienate. Consider conducting pilot sessions or collecting feedback to catch problematic content early.
• Train Managers on Title VII Boundaries: Educate supervisors and DEI program leaders about what is and is not permissible in pursuit of company goals. Make sure they understand that “reverse” discrimination is still discrimination. Well-meaning initiatives (like “diverse slates” for hiring or promotion) must be structured carefully to avoid any exclusionary effect on other groups. Managers should be instructed never to make comments or decisions implying that an employee’s protected characteristic is a reason for an action (positive or negative).
• Reinforce Anti-Harassment and Reporting Channels: Incorporate the message that harassment can take many forms – including potentially through misguided DEI efforts – into your anti-harassment training and policies. Encourage employees to speak up if they feel uncomfortable with any training or policy, and ensure they know how to report concerns. When concerns are raised, address them objectively. Never retaliate against an employee for questioning a DEI practice who has expressed a reasonable belief that the practice may be discriminatory. Such feedback can be an opportunity to improve your program’s approach and reach a wider audience.
• Stay Abreast of Legal Changes: Regularly monitor updates to federal, state, and local anti-discrimination laws and regulations.  This proactive approach helps prevent legal issues and ensures that all company HR-related initiatives remain compliant and effective.
• Consult Legal Counsel: Given the heightened scrutiny by regulators, it is wise to have counsel review new or existing DEI policies – especially those involving recruitment or selection criteria, affinity groups, or training content – to confirm they align with EEOC guidance. While most EEOC investigations are initiated by a charge of discrimination filed by individual employees, Commissioners may initiate charges as well, known as Commissioner charges. Commissioner charges are initiated by an EEOC Commissioner rather than an individual employee. Historically, Commissioner charges have been rare. However, the EEOC is considering, if not already initiating, Commissioner charges against certain employers. Large employers with a sizeable workforce are potential targets for Commissioner charges.
• Commissioner charges can pose significant challenges to employers as they are different and potentially more complex to defend than common charges filed by individual employees. The involvement of an EEOC Commissioner can lead to more extensive investigations and potentially more severe consequences. Defending against Commissioner charges can also be more complex due to the broader scope of the investigation.
• Conducting a legal audit can help identify and mitigate risky elements in DEI (for example, language in a program description that suggests a preference based on protected status) before they lead to complaints. Our team at Jackson Walker is equipped to assist employers with legal audits and workplace assessments to ensure that DEI policies, initiatives, and programming comply with anti-discrimination laws and EEOC guidance.

In sum, while there are still many unknowns, the EEOC and DOJ’s recent guidance provides an optimal opportunity for employers to review their DEI (and all HR-related) policies, programs, and practices to ensure compliance, and Jackson Walker can assist with this review. Employers must be vigilant in designing and implementing DEI (as with all) policies, programs and practices that promote inclusivity without engaging in discriminatory practices. Regular audits and reviews of DEI (and all HR-related policies) are essential to maintain legal compliance, measure the effectiveness of initiatives, and foster a positive workplace culture.

[1] What To Do If You Experience Discrimination Related to DEI at Work | U.S. Equal Employment Opportunity Commission

[2] What You Should Know About DEI-Related Discrimination at Work | U.S. Equal Employment Opportunity Commission

[3] EEOC and Justice Department Warn Against Unlawful DEI-Related Discrimination | U.S. Equal Employment Opportunity Commission

[4] What You Should Know About DEI-Related Discrimination at Work | U.S. Equal Employment Opportunity Commission

[5] What You Should Know About DEI-Related Discrimination at Work | U.S. Equal Employment Opportunity Commission

[6] See Brief of the Equal Employment Opportunity Commission As Amicus Curiae in Support of Neither Party, Vavra v. Honeywell International, Inc., No. 23-2823 (7th Cir. Feb. 6, 2024) at 21 (“In discrimination cases involving anti-discrimination trainings, courts have ruled in favor of plaintiffs who present this type of evidence” of “how the training could be discriminatory – for example, in design or execution,” “or, at the motion-to-dismiss stage, who make plausible allegations that explain how the training was discriminatory.”) (citing Hartman v. Pena, 914 F. Supp. 225 (N.D. Ill. 1995); De Piero v. Pa. State Univ., No. 23-cv-2281, 2024 WL 128209, at *7 (E.D. Pa. Jan. 11, 2024)).

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For more information on the EEOC’s informal DEI-related discrimination guidance, please contact a member of the Labor and Employment practice.

Meet Jamila

Board certified in Labor and Employment Law by the Texas Board of Legal Specialization, Jamila M. Brinson is a zealous advocate for her clients. She partners with clients to help them understand the nuances of Texas state and federal employment law, defends management and employers in employment litigation, conducts workplace investigations, drafts, and advises on employment policies, and provides individualized employee and supervisor training. Jamila formed and chairs Jackson Walker’s Diversity & Inclusion Counseling Practice, which serves clients seeking to foster inclusion in its corporate culture by implementing and maintaining effective and legally compliant diversity, equity, inclusion and belonging related strategy, policies, and procedures.

Certified in Leading Diversity, Equity and Inclusion through Northwestern University’s Weinberg College of Arts and Sciences, Jamila is often brought in by clients to conduct workplace culture assessments and propose plans of action to remedy legal concerns and decrease risk. In recognition of her practice, Jamila has been named to The Best Lawyers of America list for Employment Law—Management, Thomson Reuters’ Super Lawyers list, and Lawdragon’s list of the 500 leading U.S. Corporate Employment Lawyers.

Meet Dawn

Dawn S. Holiday focuses on labor and employment law litigation, representing corporations in disputes involving discrimination, harassment, wrongful termination, wage and hour, non-competition, trade secret and workplace investigation claims. Dawn has been recognized among Thomson Reuters’ Texas Super Lawyer and Super Lawyers – Rising Stars, “Who’s Who in Black Houston,” the National Bar Association’s “Top 40 Under 40,” and Lawdragon’s “500 Leading U.S. Corporate Employment Lawyers.” Dawn has also been recognized among the National Black Lawyers “Top 100” for three consecutive years.

Outside of her law practice, through various organizations, Dawn is on mission to advance equality for women and underrepresented attorneys in the legal profession. She is highly regarded and has an outstanding reputation amongst her peers, as well as the recipient of many prestigious awards and recognitions for her legal expertise, leadership and community service.

Meet Ari

Ariel Perez has successfully represented numerous Fortune 500 companies in labor and employment matters before federal and state courts and administrative agencies, including the DOJ, DOL, EEOC, TWC, and NLRB. Ari also conducts comprehensive audits of employee classifications and payroll records to ensure FLSA compliance and rectify potential wage and hour violations.

Ari’s expertise extends to traditional labor law, guiding clients through elections, defending against unfair practice charges, performing union avoidance training, and advising on labor management relations. She also represents federal contractors in OFCCP audits and affirmative action compliance. Ari’s clients span a wide range of industries, including energy, manufacturing, construction, retail, hospitality, staffing, securities, and healthcare.