Recent DEI Developments at the EEOC and DOJ Put Employers on Notice
On February 26, 2026, Equal Employment Opportunity Commission (EEOC) Chair Andrea Lucas sent a letter to the 500 largest U.S. employers titled “Reminder of Title VII Obligations Related to DEI Initiatives.” This letter outlines the EEOC’s anticipated enforcement focus on Diversity, Equity, and Inclusion (DEI) policies in the year ahead. The letter comes at the same time the EEOC filed a lawsuit challenging an employer’s all‑female retreat and issued a decision concerning bathrooms in federal workspaces. The DOJ has also weighed in by recently signaling its willingness to use the False Claims Act (FCA) to address “illegal DEI” programs.
Equal Employment Opportunity Commission
Chair Lucas’ Letter
Lucas’s February 26 letter emphasizes that DEI initiatives do not exempt employers from Title VII’s prohibitions on discrimination based on race, sex, or other characteristics. The EEOC Chair further signals that, with a restored quorum which the Commission lacked for much of the past year, the Agency’s efforts will be focused against employer programs that provide an advantage to employees for reasons unrelated to merit. The Chair directed employers to two technical assistance documents published last year to assist employees who believe they have been disadvantaged by DEI programs: a one-page document titled “What To Do If You Experience Discrimination Related to DEI at Work,” and a more detailed Q&A titled “What You Should Know About DEI Related Discrimination at Work.” View our previous client alert concerning this guidance from last March here.
EEOC Lawsuit and Bathroom Decision
The EEOC has already begun taking action against certain DEI programs. On February 17, the agency filed a lawsuit against Coca‑Cola for allegedly hosting an all‑female retreat and networking event. The complaint asserts that limiting participation to female employees constituted sex‑based discrimination in violation of Title VII, and that the lawsuit is necessary to protect the interests of male employees who were excluded from the event. Although Coca‑Cola has indicated it will fight the charge, the case illustrates the EEOC’s emerging focus on programs, events, and opportunities restricted to members of a particular protected class.
Also on February 26, the EEOC issued a decision in Selina S. v. Dep’t of the Army, holding that federal agencies may separate bathroom access on the basis of biological sex. The decision reverses a 2015 EEOC decision that required federal agencies to allow transgender employees to use bathrooms aligning with their gender identity. The ruling follows Executive Order 14168, issued on President Trump’s first day in office, which stated that access to federal bathrooms should be separated on the basis of biological sex rather than gender identity. While the EEOC’s new decision applies only to federal agencies and not private employers, it represents a clear statement of the agency’s interpretation of Title VII—and likely enforcement posture—on this issue.
Department of Justice
On February 19, the DOJ, through public statements from high-ranking officials, announced its own enforcement position against what it characterized as “illegal DEI.” The Department discussed actions against employers under the False Claims Act (FCA), which allows enforcement against federal contractors and grant recipients who submit false information to the federal government. The FCA is particularly punitive, allowing recovery of triple damages along with additional civil penalties. Although the DOJ officials stated they will not investigate employers simply for having a DEI program, the Department may pursue FCA claims against employers whose employment decisions had the intent and result of making decisions based on race or sex, including through informal pressure and race or sex based demographic targets.
According to the statements by the DOJ official, the Department is actively investigating contractors and grant recipients under the FCA for potential violations of federal antidiscrimination laws. Employers may wish to consult the DEI guidance memo that the Attorney General published last summer for recipients of federal funding to ensure their DEI-related activities are consistent with the Department’s enforcement position.
Takeaways for Employers
Employers should closely examine whether their programs or policies introduce any potential legal risks in a more aggressive federal regulatory landscape. When crafted and executed appropriately, DEI initiatives continue to be permissible under existing employment laws. However, as the EEOC and DOJ have made clear, employers—and especially those that receive federal funds—should expect heightened review of their programs in the upcoming year.
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, please contact one of the authors or a Miller Johnson employment and labor attorney.