New EEOC and DOJ Guidance Takes Aim at DEI Initiatives
On March 19, 2025, the Equal Employment Opportunity Commission (EEOC) and U.S. Department of Justice (DOJ) announced new technical guidance focused on Diversity, Equity, and Inclusion (DEI) initiatives in the workplace. The guidance includes a one-page summary setting forth the agencies’ view on unlawful DEI-related discrimination, as well as a Q&A.
What does the guidance say?
The joint agency guidance reiterates longstanding anti-discrimination principles that prohibit employers from setting the terms, conditions, or opportunities of employment based upon protected class. These terms and conditions broadly include hiring, firing, demotion, promotion, compensation, and benefits eligibility, among others. However, the new guidance places particular focus on DEI initiatives such as affinity groups, employee resource groups (ERGs), student fellowships, networking events, mentorship programs, recruitment and retention, and employee programming and workshops. For example, the guidance states that DEI initiatives that segregate employees based on protected class could create a hostile work environment in certain circumstances.
What does this guidance tell employers?
The newly announced guidance signals where the EEOC will focus its investigative and enforcement authority under the current administration. Initiatives likely to catch the eye of federal regulators include DEI programming that limits participation to certain protected classes (such as workplace affinity groups that are not open to all employees), recruiting efforts such as scholarships and fellowships that are only available to underrepresented candidates, and participation in external certification programs. The EEOC and DOJ are also likely to target programs implemented by companies that recognize or incentivize DEI initiatives from their vendors and contractors.
What activities in particular are the EEOC and DOJ targeting?
The guidance specifically lists the following employer activities as unlawful if based (in whole or in part) on a protected characteristic:
- Exclusion from training
- Exclusion from mentoring or sponsorship programs
- Exclusion from fellowships
- Selection for interviews (including placement on candidate slates)
The guidance also states prohibited programs can include workplace groups, such as ERGs or other employee affinity programs.
In addition, the guidance states that an employer’s DEI training “may give rise to a colorable hostile work environment claim,” and that “[r]easonable opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII.”
These investigative and enforcement priorities are underscored by an investigative letter from the EEOC sent on March 17 to 20 large law firms. The letter seeks information about DEI initiatives at the firms, including information about scholarships and fellowships oriented toward underrepresented groups, the selection of underrepresented groups for employment and promotion within the firms, compensation and bonus information, the identification of clients who implement diversity requirements or incentive programs, and documentation about DEI reports, programming, plans, and goals.
What does this mean for DEI initiatives in the workplace?
Properly designed and applied, DEI initiatives continue to remain lawful employment practices. However, the messaging from the EEOC is clear: DEI initiatives will come under significant scrutiny during the current administration. The new guidance is in line with the Trump administration’s challenge to DEI initiatives, which has already issued multiple executive orders targeting DEI. View our previous client alerts on this topic from March 17 here and February 24 here.
Employers who wish to continue their DEI initiatives should understand how their DEI initiatives are currently designed, whether those initiatives raise potential legal concerns, and how those initiatives can continue to exist in a more scrutinized environment.
Miller Johnson will continue to closely monitor this administration’s actions regarding DEI initiatives and will keep you updated of significant developments. For guidance navigating an ever-changing employment landscape, or if you have questions about how this new guidance could impact your business or organization, contact one of the authors or your Miller Johnson employment attorney.