Labor & Employment Law Daily Wrap Up, EXPERT INSIGHTS—Unpacking the joint EEOC and DOJ guidance on ‘DEI-Related Discrimination’, (Apr 24, 2025)

Law Firms Mentioned:Perkins Coie

Organizations Mentioned:Perkins Coie, LLP | U.S. Department of Justice | U.S. Equal Employment Opportunity Commission

By Christopher Wilkinson and Jeremy Wright of Perkins Coie LLP

On March 19, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) released joint "technical assistance documents" (a one-page document titled "What To Do if You Experience Discrimination Related to DEI at Work" and a longer guidance document entitled "What You Should Know About DEI-Related Discrimination at Work") that further clarify the specific diversity, equity, and inclusion (DEI) practices that the administration considers to constitute "illegal" DEI. The jointly issued guidelines follow direction from the new administration's much-discussed executive order (EO) on DEI-related practices, titled "Ending Illegal Discrimination and Restoring Merit-Based Opportunity," which we previously covered here. That EO, which had been temporarily enjoined by a district court on February 21, 2025, was recently revived by the U.S. Court of Appeals for the Fourth Circuit, and these new guidelines come shortly on the heels of the Fourth Circuit's stay of the nationwide injunction.

Although the underlying EO explicitly directed the federal government to root out "illegal DEI" practices, the EO was opaque as to which kinds of practices would be targeted by the administration. The new technical assistance documents explain how to file a charge of discrimination and purport to provide additional guidance on how antidiscrimination laws apply to certain employment practices.

"Illegal DEI": What Practices Are Identified?

The new guidelines state that a DEI-related policy or initiative "may be unlawful if it involves an employer or other covered entity taking an employment action motivated—in whole or in part—by race, sex, or another protected characteristic." Here, not only are common "employment action[s]" (e.g., hiring, firing, compensation, promotions, and demotions) identified by the guidelines as potentially unlawful when motivated by "race, sex, or another protected characteristic," but so too are the following:

Access to or exclusion from training opportunities
Internship opportunities (including so-called "fellowship" programs)
Access to mentorship and sponsorship programs, including networking opportunities
Interview selection policies, including placement on or exclusion from interview "slate[s]" or pools
Work assignments and associated job duties
Entitlement to fringe benefits

Additionally, the guidelines emphasize "limiting, segregating, or classifying employees or applicants based on race, sex, or other protected characteristics" as suspect practices, including "employee activities which are employer-sponsored." Here, employee resource groups, business resource groups, and affinity groups that are not open to all are identified as examples of potentially suspect DEI practices. Employee trainings—even if the same trainings are offered to different employee groups—are cited as examples of "illegal DEI" when the employee groups are segregated for the trainings.

The guidelines also state that DEI-related initiatives may form the basis for a hostile work environment claim when employees are "subjected to unwelcome remarks or conduct" based on a protected characteristic and that opposition to a DEI-related initiative may form the basis for a retaliation claim under Title VII.

The Administration's Interpretation of Title VII

The guidelines indicate that the administration intends to take a broad reading on Title VII's coverage in order to find certain DEI practices illegal. Relying on a greatly expanded reading of the recent landmark Muldrow decision (discussed further here), the guidelines emphasize that only "some harm" is needed for an employee to bring a Title VII claim based on a DEI practice or initiative. The Supreme Court of the United States' Muldrow decision noted that the standard would likely result in additional discrimination claims. The joint guidelines also echo EEOC's longstanding position that there is no higher bar of proof for so-called "reverse discrimination" claims (the question of proof in reverse discrimination claims is currently pending before the Supreme Court).

Additionally, the guidelines address the question of whether DEI-related initiatives can be defended on the grounds of a business necessity, including a client preference for diversity. Here, the guidelines answer in the negative, asserting that no diversity interest exception is provided under Title VII. Moreover, the guidelines clarify that the EEOC will be taking the position that a DEI-related initiative may be unlawful "even if race, sex, or another Title VII protected characteristic was just one factor among other factors" contributing to an employment decision. Together, the positions being taken by the EEOC could make it much easier for complainants to raise Title VII claims, whether on the basis of reverse discrimination or otherwise.

Key Takeaways for Employers

Crucially, the joint guidance does not state that the administration considers all DEI-related practices to be "illegal" under Title VII. Instead, the guidelines limit their focus on "illegal DEI" to practices that take race, sex, or another protected characteristic into account as part of an employment decision or actions causing "some harm." As such, employers should continue to take a nuanced, circumspect view of DEI programs and initiatives by reviewing their existing programs to ensure that they are compliant with the guidance, as well as the existing caselaw.

It is also important to note that, although these guidelines provide insight into the new administration's enforcement mindset, the Supreme Court's recent decisions on Chevron deference suggest that agency interpretations have less weight. Legal decisions on various DEI practices will define the guardrails of programs, and employers should remain attuned to the amount of deference accorded to the guidance documents. Moreover, to the extent that DEI programs form a cornerstone of antidiscrimination compliance procedures and practices, risks related to standard (nonreverse) discrimination claims may greatly increase for employers who abruptly abandon DEI efforts.

Further, as always, employers should continue to seek advice from trusted outside counsel regarding the latest developments in employment law, including as it relates to DEI legal issues, and Perkins Coie will continue to closely monitor developments in this space.

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.

Christopher Wilkinson and Jeremy Wright

Perkins Coie LLP

700 13th Street, NW

Suite 800

Washington, DC

20005-3960

United States

Tel.: +1 202 654 6200

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URL: www.perkinscoie.com/

Attorneys: (Perkins Coie).

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