By: David S. Levine

On March 19, 2025, the Equal Employment Opportunity Commission (“EEOC”) and Department of Justice (“DOJ”) issued two “technical assistance” documents providing guidance on the circumstances under which, in the agencies’ view, an employer’s Diversity, Equity, and Inclusion (“DEI”) programs may violate Title VII of the Civil Rights Act of 1964. In the update that follows, we summarize the guidance and provide recommended next steps for employers.

The Guidance

Although the technical assistance documents do not establish new legal rights, they provide important insights into these agencies’ enforcement priorities in the new administration. Some highlights from the guidance:

• “Reverse” Discrimination: The guidance makes clear that Title VII’s protections apply equally to all individuals regardless of their race, gender, or other protected characteristic. As a result, when a member of a majority group brings a claim under Title VII, the guidance specifies, there is no higher showing of proof relative to a claim brought by a minority. Indeed, the EEOC rejects the frequently used term for such claims: “reverse” discrimination claims. “The EEOC’s position is that there is no such thing as ‘reverse’ discrimination,” the guidance states. “[T]here is only discrimination.”

• Covered Actions: The guidance also provides a list of employer policies, programs, and practices that may be unlawful when motivated by race, gender, or other protected characteristics. The list includes typical employer activities such as hiring, firing, promotion, demotion, and compensation practices. But the list also includes practices that are commonly part of DEI initiatives, such as “fellowship” programs, “leadership development programs,” and “access to mentoring, sponsorship, or workplace networking.”

According to the guidance, having separate programs on the basis of a protected characteristic such as race violates Title VII, “even if the separate groups receive the same programming content or amount of employer resources.” Thus, limiting “membership in workplace groups, such as Employee Resource Groups (ERG) or other employee affinity groups, to certain protected groups” would ordinarily constitute unlawful discrimination.

• Mixed Motive: The guidance also makes clear that unlawful discrimination can occur even where business or similar justifications provide partial support for the employer action. As the guidance indicates, for there “to be unlawful discrimination, race or sex (or any other protected characteristic under Title VII) does not have to be the exclusive (sole) reason for an employer’s employment action or the ‘but-for’ (deciding) factor for the action. 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.”

• Customer Preference: Relatedly, the guidance indicates that client or customer preference—such as a client preferring to work with companies with certain diversity initiatives—is not a defense to an otherwise discriminatory action. “Basing employment decisions on the racial preferences of clients, customers, or coworkers,” the guidance notes, “constitutes intentional race discrimination” and is “just as unlawful as decisions based on an employer’s own discriminatory preferences.”

• DEI Training: The guidance also indicates that an employer’s DEI or similar training can create a hostile work environment. In particular, the guidance states that where a plaintiff presents “evidence of how the training was discriminatory (for example, in the training’s design, content, or execution)” by favoring one group over another, such training can support a hostile work environment claim.

Employer Takeaways

In light of the above guidance, employers with DEI or similar initiatives should consider taking the following steps:

Analyze Existing Programs. Although the guidance suggests that DEI-related discrimination will be an enforcement priority for the EEOC and DOJ in the current administration, the guidance does not indicate that the administration considers all DEI programs to be necessarily unlawful under Title VII. In addition, for some employers, DEI programs are an important component of reducing discrimination in their workplaces.

That said, certain DEI programs are far more likely to draw scrutiny. Any explicit use of quotas designed to “balance” a workforce by race, gender, or other protected characteristics is unlawful, as are programs that are available only to candidates or employees of specified races, genders, or other protected groups. Relatedly, if employers have affinity groups, those groups should ordinarily be open to even those employees who are not members of the particular protected group. Any affinity group that is available only to members of the protected group—such as a Dutch affinity group being open to only employees of Dutch national origin—will run afoul of this guidance.

DEI initiatives focused on executives and other managers may also create risks. For example, many companies tie executive compensation to diversity goals. To the extent those diversity goals by their own terms—or even in practice—favor one protected group over another, such compensation practices will likely draw the ire of the current administration.

Assess Risk Tolerance. As noted above, some initiatives—such as hiring goals and quotas tied to race or gender—are improper under Title VII and must be avoided. But for most initiatives, the analysis will be less straightforward. For example, if an employer has a DEI committee or similar group, should that group be disbanded (as some employers have done) or the group’s mission(s) altered? Similarly, if an employer provides training on DEI, should it continue to do so? And if it does, how, if at all, should that training be modified given current scrutiny?

For training in particular, and as noted above, EEOC guidance raises the specter that DEI-related training may create a hostile work environment if the training is “discriminatory in content, application, or context.” Accordingly, employers should review any DEI training programs to ensure that they cannot reasonably be construed as discriminatory on the basis of any protected category.

More broadly, when assessing whether to retain, modify, or eliminate DEI initiatives, employers should balance the benefits of the programs against legal and other risks. If a program is a core component of the employer’s strategy for reducing discrimination or is otherwise important to its employees or customers, then an employer may be justified in retaining a program despite certain risks. But for employers with legally risky initiatives that have not been embraced by employees or customers, the balance may tip in favor of eliminating or modifying those initiatives. These questions will be fact-specific and turn on legal, reputational, and other considerations.

Monitor Developments. Although these guidance documents foreshadow the EEOC and DOJ’s enforcement priorities, it remains to be seen which types of initiatives and companies these agencies will target. Similarly, as the issue of “reverse” discrimination becomes more prominent, we are likely to see an increasing number of private claims by purportedly aggrieved employees challenging DEI initiatives. As these cases proceed through the courts, additional guidance—sometimes specific to particular jurisdictions—will become available. Employers should stay abreast of this changing landscape but strive to adopt policies that are consistent with their core values and that will remain legally compliant no matter the administration.

Fox Swibel will continue to follow these developments closely and can be reached at any time. Please contact Steve Brenneman, Kelly Smith Haley, David Levine, or the Fox Swibel attorney with whom you regularly work to address these issues.

David S. Levine

David Levine is a partner in the Firm’s Employment Law and Litigation Groups. David’s practice focuses on representing clients in a wide range of labor and employment matters, as well as other business disputes. As part of his litigation practice, David regularly defends employers in class, collective, and individual actions involving claims under the FLSA, Title VII, ADA, and other federal and state statutes. David also often litigates individual and class actions involving data privacy issues, in particular cases under the Illinois Biometric Information Privacy Act (BIPA). He practices in state and federal courts and before administrative agencies such as the EEOC, DOL, and DOJ.

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This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.