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On March 19th, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) released two pieces of new guidance focused on unlawful DEI discrimination. Chiefly, “DEI” stands for “diversity, equity, and inclusion” and is most commonly associated with workplace-related programs. Earlier in February, EEOC Acting Chair Andrea Lucas announced an update to the agency’s gender ideology practices.
DEI Discrimination and Title VII of the Civil Rights Act of 1964
Generally, according to the EEOC, DEI is a broad term. In fact, the term is not defined in Title VII of the Civil Rights Act of 1964 (Title VII). Overall, Title VII prohibits employment discrimination based on protected characteristics such as race and sex. The agency believes that under Title VII, workplace DEI initiatives may be unlawful if they involve employment actions motivated by an individual’s race, sex, or other protected characteristics. Specifically, these employment actions could include:
- hiring,
- firing,
- promotions/demotions,
- earning equal compensation and fringe benefits,
- access to or exclusion from training,
- mentoring, sponsorship, or workplace networking opportunities,
- the ability to complete internships,
- overall selection for job interviews, or
- the assignment to specific job duties or work assignments.
Overview of the New DEI Discrimination Guidance
Accordingly, to help educate the public about how well-established civil rights rules apply to all employment practices, the EEOC and the DOJ released a joint one-page technical assistance document: “What To Do If You Experience Discrimination Related to DEI at Work.” Specifically, this document outlines the procedures that employees can follow to submit a charge of DEI discrimination. It also includes examples of what the two federal agencies consider potential actionable discrimination.
Additionally, the EEOC released a longer question-and-answer technical assistance document entitled “What You Should Know About DEI-Related Discrimination at Work.” In the Q&A, the agency stresses that Title VII does not provide any exception for DEI in prohibiting discrimination. This second resource also includes DEI discrimination reporting procedures.
Markedly, the new guidance does not change any penalty amounts levied by the EEOC. Currently, depending on employee size, the remedy amounts for damages range from $50,000 to $300,000.
Employer Takeaways
In conclusion, although the new guidance discusses the implications of DEI on Title VII, it is important to note that the law has not changed. The EEOC and DOJ are focusing efforts on dismantling company DEI programs that may conflict with the anti-discrimination provisions currently included under federal law. Given this, employers should review their company policies to identify any practices that could come under scrutiny. Such practices can include giving explicit preference to certain demographic groups or providing training that includes race- or gender-based stereotypes. Finally, companies may want to consult with their legal counsel to review current policies and remove any discriminatory practices related to DEI.
To assist employers in training their workers on forms of harassment and discrimination that may occur in the workplace, WorkWise Compliance has created the Harassment & Discrimination Prevention Training eLearning Module for Employees. In addition to explaining harassment and discrimination, the training module outlines strategies for preventing such actions and provides guidance on reporting complaints. For employers in California and New York, the following harassment and discrimination prevention trainings need to be utilized where appropriate:
- California Sexual Harassment Training eLearning Program
- New York State Sexual Harassment Training eLearning Program
