THE EQUAL Employment Opportunity Commission, together with the Department of Justice, recently issued new guidance that significantly reshapes the legal landscape for workplace diversity, equity and inclusion programs. This comes on the heels of a series of executive orders issued by President Trump that direct federal agencies to eliminate what the administration characterizes as “illegal DEI” practices.
On March 19, the EEOC and DOJ issued two technical assistance documents meant to clarify how Title VII of the Civil Rights Act applies to DEI programs. While the documents reflect long-standing principles of anti-discrimination law, they also take a narrower view of what DEI initiatives are legally permissible.
For employers — especially those with formal DEI programs — this development creates new legal exposure, murky compliance territory and growing uncertainty around what is now permissible. While the guidance outlines several potentially unlawful DEI practices, this ambiguity puts employers in a difficult position because the line between compliant and noncompliant practices is often hard to draw.
Below is a practical breakdown of what’s changed, what remains unclear and what senior leadership should consider doing now.
The guidance
The agency said DEI policies, programs or practices may be unlawful under Title VII if they involve “an employment action motivated — in whole or in part — by an employee’s race, sex, or another protected characteristic.” The guidance also emphasizes that protections apply equally to majority and minority groups.
Main Changes
Based on various legal interpretations of the guidance, the following are some of the most significant changes:
No exceptions for diversity goals – The guidance states there is no “diversity interest” exception under Title VII.
Affinity and resource groups must be open to all – Employers cannot restrict participation in affinity groups based on race, sex or similar traits.
No segregated programs – Holding training or other programs that separate participants by race, gender or other protected categories is likely unlawful.
No quotas – The EEOC reiterated that hiring or promotion quotas, or any form of “balancing” the workforce based on demographic traits, is discriminatory.
There is no “reverse discrimination” – Title VII protects all employees, regardless of group status. It does not require a higher burden of proof for claims from majority-group employees.
Steps employers can take
Given the legal uncertainty, the law firm Fisher Phillips recommends that companies consider the following actions:
• Engage legal counsel to review DEI-related policies, training materials and communications. Focus on areas such as hiring, promotion, compensation, training, mentorship, internships and affinity group policies.
• Shift from targeted DEI initiatives based on protected characteristics to programs that promote skill-building, access and inclusion for all employees. Emphasize transparent, merit-based advancement and development opportunities.
• Ensure programs emphasize workplace culture, professional development and merit-based access to opportunities.
• Update your training to reflect the latest EEOC guidance. Make sure that decision makers understand that DEI efforts cannot involve preferences or separate treatment based on protected traits.
Bottom line
The new guidance is a major shift in how the EEOC will approach regulating workplace discrimination. For employers, this means a narrower path for legally compliant programs and greater exposure to discrimination claims from any employee group.
If you have a workplace DEI program, it’s imperative that you revisit it and adjust it accordingly.