EEOC Issues New Technical Assistance on “DEI-Related Discrimination”

Seyfarth Synopsis: On March 19, 2025, the EEOC issued two technical assistance documents addressing “DEI-related discrimination” in the workplace. The first document, issued jointly with the Department of Justice, is a one-pager titled “What To Do If You Experience Discrimination Related to DEI at Work.” It encourages employees to file charges with the EEOC if they believe they have experienced DEI-related discrimination. The second technical assistance document, issued solely by the EEOC, titled “What You Should Know About DEI-Related Discrimination at Work,” takes the form of a detailed Q&A document generally describing how Title VII applies to DEI initiatives. It summarizes the EEOC’s position that certain DEI-related practices are problematic and may be unlawful under Title VII, adding details to earlier statements by the Trump administration and Acting Chair Andrea Lucas of their intent to make this an enforcement priority.

As we previously analyzed, the EEOC currently lacks a quorum and is comprised of one Republican, Acting Chair Lucas, and one Democrat, Commissioner Kalpana Kotagal. However, the EEOC’s technical assistance is issued solely by the Acting Chair’s authority and does not require approval by any other Commissioners.

The EEOC’s technical assistance begins by clarifying that “Diversity, Equity, and Inclusion” (DEI) is a broad term that is not defined by Title VII.  However, DEI policies, programs or practices, may be unlawful if employment action is “motivated – in whole or in part” by race, sex or other protected characteristics.  In addition to reiterating that employers may not set unlawful quotas or otherwise “balance[e] a workforce by race, sex or other protected traits,” the EEOC’s technical assistance document clarifies the EEOC’s position regarding certain specific DEI practices.

Diverse Interview Slates: The EEOC’s Q&A document unambiguously states, “The prohibition against disparate treatment, including DEI-related disparate treatment, includes disparate treatment in… Selection for interviews, including placement or exclusion from a candidate “slate” or pool.” This statement implicates employers who might use “diverse slate” policies that, for instance, require minimum representation of candidates from specific demographic groups in their interview pools.

A footnote cautions that “diverse slate policies also can require employers to ask or otherwise obtain pre-employment information about race, or another protected characteristic” and that “pre-employment questions about race can suggest that race will be used as a basis for making selection decisions.” The footnote further cautions that “[i]f the information is used in the selection decision and members of particular racial groups are excluded from employment, the inquiries can constitute evidence of discrimination.”

Employee Resource Groups (ERGs): Both technical assistance documents specifically address ERGs as a potential area of concern. Importantly, neither document suggests that all ERGs are unlawful. Instead, each focuses on ERGs with membership restrictions. The longer Q&A document explicitly identifies “limiting membership in workplace groups, such as Employee Resource Groups (ERG), Business Resource Groups (BRGs), or other employee affinity groups, to certain protected groups” as potentially violating Title VII's prohibition against limiting, segregating, or classifying employees based on protected characteristics.

No “Diversity Interest” Exception: The EEOC’s Q&A document states the explicit position that “[n]o general business interests in diversity and equity (including perceived operational benefits or customer/client preference) have ever been found by the Supreme Court or the EEOC to be sufficient to allow race-motivated employment actions.” The document adds that “Title VII does not provide any ‘diversity interest’ exception to these rules. Nor has the Supreme Court ever adopted such an exception.”

Segregated Training or Programming: Both technical assistance documents contain explicit warnings against “separating workers into groups based on race, sex, or another protected characteristic when administering DEI or any trainings, workplace programming, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources.” This language seemingly targets practices such as race-specific or gender-specific training sessions, certain affinity “safe spaces” or other separated programming.

Mentoring and Networking Programs: Both technical assistance documents emphasize that employers cannot permit race or sex bias to affect access to “mentoring, sponsorship, or workplace networking / networks”. The EEOC’s Q&A document specifically states, “Employers instead should provide “training and mentoring that provides workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascend to upper-level jobs.” Employers also should ensure that “employees of all backgrounds . . . have equal access to workplace networks.”” The implication for employers is that the EEOC views mentoring or networking programs that limit participation based on protected characteristics as potentially violating Title VII, even if such programs were designed with inclusion goals in mind. 

The EEOC's Q&A document also contains additional statements clarifying its position regarding how Title VII applies to other aspects of workplace DEI initiatives and practices.

Broad Application of Title VII and Rejection of the Concept of “Reverse” Discrimination: The EEOC’s technical assistance confirms the well-understood principle that Title VII’s protections “apply equally to all workers” and that “different treatment based on race, sex, or another protected characteristic can be unlawful discrimination, no matter which employees or applicants are harmed.” The EEOC rejects the concept of 'reverse discrimination,' stating that “there is no such thing as 'reverse' discrimination; there is only discrimination.”

Mixed Motive: The EEOC’s technical assistance confirms its position that the mixed-motive standard under Title VII applies fully to DEI-related employment decisions. The document states plainly: “An employment action still is unlawful even if race, sex, or another Title VII protected characteristic was just one factor among other factors contributing to the employer's decision or action.” It explicitly rejects the argument that discrimination occurs only when protected characteristics are the “but-for” or deciding factor, making clear its position that even partial consideration of race, sex, or other protected characteristics in DEI initiatives can create Title VII liability.

Hostile Work Environment Claims From DEI Training: The EEOC’s technical assistance confirms its position that “depending on the facts, an employee may be able to plausibly allege or prove that a diversity or other DEI-related training created a hostile work environment” based on its content, application, or context. The document does not provide guidance about what fact patterns might give rise to a hostile work environment claim.

Protected Opposition to DEI Programs: The EEOC’s technical assistance states that “reasonable 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.” Here, too, the document  does not describe what would constitute a sufficient “fact-specific basis” for such opposition or provide examples of protected opposition activities related to DEI programs.

Implications for Employers

The EEOC’s March 19 technical assistance reflects Acting Chair Lucas’s stated priority of “rooting out unlawful DEI-motivated race and sex discrimination” and begins to add some detail to help employers identify DEI practices likely to draw greater EEOC scrutiny. Employers whose current or recent DEI practices may be implicated in the March 19 technical assistance should consider conducting privileged reviews of their current DEI initiatives. While not every DEI initiative is at risk, the March 19 technical assistance reflects the EEOC’s focus on unlawful DEI programs and foreshadows its upcoming enforcement and litigation efforts.

Seyfarth will continue to monitor these developments and provide updates as developments occur. For more information about the EEOC, its composition, and litigation activity, please see Seyfarth Shaw’s EEOC-Initiated Litigation - 2025 Edition or contact your Seyfarth attorney. For more information on how these changes may affect your workplace policies and compliance obligations, please contact any of the authors, or your Seyfarth attorney.