On March 19, 2025, the Equal Employment Opportunity Commission (EEOC), in collaboration with the Department of Justice (DOJ) issued two technical assistance documents (“What To Do If You Experience Discrimination Related to DEI at Work” and “What You Should Know About DEI-Related Discrimination at Work”) focused on educating the public about unlawful discrimination related to employers’ Diversity, Equity, and Inclusion (DEI) policies or initiatives.
While the enactment of DEI policies may be well-intentioned and borne from a desire to be inclusive, the EEOC cautions that they may sometimes result in unlawful discrimination if Implementation of the policies requires consideration of protective characteristics involve consideration of protected characteristics.
EEOC’s New DEI Guidance and Anti-Discrimination Focus
The EEOC has a broad scope, working to protect employees from workplace discrimination based on race, color, religion, sex, national origin, age, disability and genetic information. In pursuit of these goals, the EEOC has promulgated numerous rules in relation to, among other things, recruitment, hiring, pay and benefits, promotion, discharge, reasonable accommodation, pregnancy, religion, harassment and dress code. This most recent EEOC guidance relating to DEI policies is a major shift from past EEOC priorities, and advises employers that anti-discrimination laws prohibit workplace decisions and actions based on protected characteristics, even when those decisions and actions were intended to promote diversity and equity.
Understanding DEI and Discrimination Laws
The EEOC clarifies that the increased implementation of DEI programs and training in the last few years did not change the legal landscape in relation to protected classes and employment actions. They clarify further that:
- Employment actions motivated or influenced by race, sex, age, or other protected characteristics, even when intended to foster inclusion, are prohibited. This explicitly includes using quotes or otherwise “balancing” a workforce by race, sex, or other protected traits.
- There can be no disparate treatment or other action motivated in whole or in part by race, sex or other characteristic in the terms, conditions, or privileges of employment. This includes hiring, promotion, selection for interviews, compensation, fringe benefits, and the inclusion and/or exclusion of training or mentorship programs.
- Title VII prohibits employers from limiting, segregating, or classifying employees based on protected characteristics in a way that affects their states or deprives them of employment opportunities. Prohibited conduct may include limiting membership in workplace groups or affinity groups, and separating employees into groups during training or other activities, even if the groups receive the same content or amount of employer resources.
- An employer cannot justify taking any employment action based on a protected characteristic because of any alleged business necessity or interest in diversity. Title VII does not provide any “diversity interest” exception to the rules, even in situations where there are perceived operation benefits or client or customer preference.
Best Practices for Employers: Preventing EEOC Claims and Ensuring Compliance
Before initiating suit, any aggrieved individual must first file a charge of discrimination with the EEOC. After a charge is filed, the employer is afforded the opportunity to provide their evidence and position statement, and the EEOC conducts an independent investigation of the claims. To avoid the filing of any claims, employers should strive to take the following preventative steps:
- Review all workplace programs and policies to ensure that no protected class is being disparately impacted, even if inadvertently.
- Follow all policies and procedures in relation to employment, grant minimal exceptions and only do so under extraordinary circumstances.
- Provide training to employees, specifically management and human resources employees, regarding diversity in the workplace and unlawful discrimination.
- Assure opportunities for participation in programs, fellowships, mentorships, and trainings are available to all applicants, without regard to any protected characteristic.
- Remove identifying information from applications, resumes, and other forms, and eliminate diversity requirements for interviews.
- Work to minimize unconscious bias, and ensure that any trainings and materials do not promote said principles.
- Keep an in-depth and detailed personnel file for all employees. Said file should contain all relevant information, including reviews, grievances, certifications, licenses, discipline records and background information.
Of course, an EEOC claim can be brought against even the most diligent employer. In those situations, the EEOC conducts an investigation and makes a determination whether they will be facilitating a lawsuit against the employer, whether they will permit the employee to bring suit in their individual capacity, or whether they will find no cause and rule that the employee cannot move forward. No matter the nature of your company or the nature of the claim, it is best to seek legal advice if an employee has filed a charge.
Legal Support for Your EEOC Needs
The team at MBM Law has extensive experience in defending EEOC claims brought against both private and public employers, and we stand ready to assist your company with discrimination complaints as well as all other employment-related matters.
If you have questions or need assistance with EEOC compliance, contact MBM Law’s experienced employment counsel for support at 412.242.4400.
