Labor & Employment Law Daily Wrap Up, EXPERT INSIGHTS—EEOC & DOJ new guidance on DEI-related discrimination: What does it mean for employers?, (Apr 2, 2025)

Law Firms Mentioned:Keating, Meuthing & Klekamp

By Alison M. Huenefeld and Kelzé M. Riley of Keating, Meuthing & Klekamp

On March 19, 2025, the Equal Employment Opportunity Commission and Department of Justice issued guidance addressing unlawful discrimination related to diversity, equity, and inclusion ("DEI") in the workplace. Although DEI is not defined in Title VII of the Civil Rights Act of 1964, it has recently come under significant scrutiny. This guidance was released two days after the EEOC sent correspondence to certain large law firms requesting information regarding DEI-related employment practices.

The guidance, entitled "What To Do If You Experience Discrimination Related to DEI at Work," provides information to job applicants and employees on how to identify DEI-related discrimination in the workplace and how to exercise their rights under Title VII. Specifically, the guidance provides that employer-led DEI initiatives, policies, programs, and practices may be unlawful if an employer is taking an employment action "motivated--in whole or in part--by [an employee's] race, sex, or other protected characteristic." Some of the employment actions specified include hiring, firing, promotion, compensation, selection for interviews, and access to or exclusion from mentorship, training, networking, and fellowship opportunities.

The EEOC simultaneously created a question-and-answer website ("EEOC Q&A") to assist employees, entitled "What You Should Know About DEI-Related Discrimination at Work." Both the guidance and EEOC Q&A provide instructions on filing a charge with the EEOC. Below are some key considerations for employers in light of these developments:

Affinity Groups
The guidance provides that Employers cannot limit, segregate, or classify employees based on any protected characteristic in a way that deprives them of employment opportunities. This includes limiting membership in workplace groups (like employee resource groups or affinity groups) to certain protected groups, which could result in discriminatory practices. Employers must ensure that these groups do not, intentionally or unintentionally, exclude individuals based on any protected characteristic under Title VII. For example, mentorship limited to certain affinity groups could lead to discrimination if other employees are excluded based on their protected characteristics. Thus, given this guidance, employers may want to consider re-evaluating their affinity-based resource groups and mentorship programs to consider whether they are inclusive and accessible to all employees, regardless of their protected characteristics.
Hostile Work Environment Related to DEI Trainings
Further, per the guidance, discrimination resulting from DEI training programs could serve as the basis for a harassment claim. According to the EEOC Q&A, employees may be able to allege that DEI-related training created a "hostile work environment." As such, employers should carefully review all DEI-related training to determine if it is discriminatory in its "content, application, or context" and consider providing training and programming geared toward workers of all backgrounds.
Retaliation Against Employees who Oppose DEI Trainings
In addition, retaliation against employees who oppose DEI training programs is expressly prohibited by the guidance, provided the employee provides a fact-specific basis for their belief that the training violates Title VII. An employee's refusal to attend or participate in training they believe to be discriminatory in nature may constitute "protected activity." Employers should not retaliate against employees who express concerns about the content of any DEI-related training, as such retaliation could lead to viable claims under Title VII.
Diversity as a "Business Necessity"
Finally, the guidance provides that Title VII protection applies to all employees--regardless of their race, sex, or any other protected characteristic. As such, employers cannot justify employment practices advancing diversity as required by "business necessity." Client or customer preferences regarding diversity cannot be used as a valid defense to a Title VII claim, as such preferences tend to exclude employees based on a protected characteristic. In light of this guidance, employers would be wise to examine any client and customer diversity preferences to ensure they are not exposing themselves to liability.
Given that the EEOC and DOJ are placing a significant emphasis on investigating employers for potential DEI-related Title VII violations, employers should consider reviewing their current DEI programs, policies, and practices to evaluate their compliance with Title VII. This includes reassessing any committees, groups, or programs based on or around protected classes, regardless of whether they are open to all employees, to determine that there is no inadvertent exclusion. The KMK Labor and Employment Team is available to assist employers in navigating this changing landscape and answering any DEI-related questions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Alison M. Huenefeld and Kelzé M. Riley

Keating, Meuthing & Klekamp

One East Fourth Street

Suite 1400

Cincinnati

OH 45202

United States

Tel.: +1 513 579 6400

E-mail:

URL: www.kmklaw.com/

Attorneys: (Keating, Meuthing & Klekamp).

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