Five years ago, companies were eager to adopt diversity, equity, and inclusion (DEI) programs. Now, the pendulum has swung in the other direction. DEI programs are under attack, and employers are trying to figure out what kinds of programs they can maintain without bringing unwanted scrutiny.
On March 20, 2025 the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance on “What You Should Know About DEI-Related Discrimination at Work,” which may help clarify some of these questions, while leaving others unanswered. The EEOC’s guidance is not itself binding law and has yet to be tested in court, but it announces the Commission’s new priorities and interpretations of the law that employers need to consider.
The guidance starts by announcing that DEI “is a broad term that is not defined” in Title VII of the Civil Rights Act of 1964, which “prohibits employment discrimination based on protected characteristics such as race and sex.” This means, in turn, that “illegal DEI” isn’t a particularly useful term. According to the EEOC’s accompanying guidance, issued the same day, on “What to Do If You Experience Discrimination Related to DEI at Work,” the DEI label can be applied to many kinds of programs, ranging from “unlawfully using quotas or otherwise ‘balancing’ a workforce by race, sex, or other protected traits” to interview selections and workplace affinity groups.
The EEOC guidance on “What You Should Know” declares that “DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.” The EEOC’s list of employment actions that cannot consider these protected characteristics as a factor is long; it includes not just hiring, firing, compensation, and promotions, but also access to mentoring and networking, training, placement in candidate pools, and work assignments.
Actions motivated by race, sex, or other protected characteristics are prohibited even if the decisions favor historically under-represented groups. The EEOC guidance emphasizes that Title VII applies “equally to all workers,” and it applies the “same standard of proof to all race discrimination claims, regardless of the victim’s race.”
The EEOC also warns that “[d]epending on the facts” an employee may be able to sue an employer for a “hostile work environment” based on “diversity or other DEI-related training,” and that an employee’s opposition to “unconscious bias training” can constitute protected activity under federal law.
For example, in one case, a professor successfully stated a hostile work environment claim based on frequent trainings that included a “constant drumbeat of … negative language,” including discussions of “white supremacy,” “white privilege,” and “ascribing negative traits to white people or white teachers without exception and as flowing inevitably from their race.”1 Ultimately, however, the court in that case granted summary judgment for the employer, ruling that the derogatory comments about white people during the trainings were not “severe” or “pervasive” enough to create a hostile work environment for the professor.2
Other government departments have been going beyond even the EEOC’s stern guidance. Recently, the Department of Defense purged mentions of the Enola Gay, Tuskegee Airmen, and female Marines from its website as part of a so-called DEI crackdown. Is it “illegal DEI” to mention the contributions of women and Black Americans in the workplace, or to use the word “gay”? No one from the EEOC has yet taken that position, but employers are understandably leery of the breadth of the government’s “anti-DEI” positions.
The EEOC guidance prompted a critical response from a group of former EEOC officials, who issued a joint statement arguing that the guidance may unfairly chill employers’ efforts to provide equal opportunity. They noted that DEI training rarely results in successful hostile work environment claims; that employee resource groups can be organized to address common experiences so long as they are open to all and apply similar processes and criteria to their participants; and that employers can review their hiring criteria and qualifications to see if any requirements create a barrier for equal opportunity. Finally, they observed that employers’ collection and use of data on their employee populations is essential for identifying and correcting barriers to equal employment opportunity.
This is not the same thing as having racial quotas or rewarding managers financially for promoting employees who are in protected classes. Those actions are more likely to draw government scrutiny or be used as evidence in lawsuits by employees who feel they’ve been victims of discrimination. For example, in one case, an employer was hit with a multi-million-dollar judgment in favor of a white male, based in part on evidence that the employer provided "race-based bonuses" to executives who achieved DEI objectives.3
Ultimately, employers will have to decide what kind of risks they are comfortable taking. Will they studiously ignore the mere existence of race, sex, and other protected characteristics, risking claims of biased decision-making against historically underrepresented classes? Or will they continue to strive for fully inclusive workplaces with equal opportunity for all, risking claims of “illegal DEI”?
At this stage, employers who are cautious of crossing the DEI line can take some proactive steps. They can take a harder look at their DEI programs to see if they include factors such as race- or sex-based targets for hiring or promotions; compensation for meeting race- or sex-based objectives; fellowships or other opportunities, such as mentorships, that are awarded based on protected characteristics; or training that could be viewed as unduly hostile toward certain races or genders. The EEOC’s emphasis on these types of programs suggests that they will be the most fertile ground for enforcement actions or DEI-related lawsuits, at least in the near term.
1De Piero v. Pennsylvania State Univ., 711 F. Supp. 3d 410, 423-24 (E.D. Pa. 2024). That court also stated that “discussing in an educational environment the influence of racism on our society does not necessarily violate federal law. In allowing De Piero's hostile work environment claim to proceed, the Court does not contemplate that it is, or should be, the norm to maintain a workplace dogmatically committed to race-blindness at all costs.” Id. at 424.
2De Piero v. Pennsylvania State Univ., Civ. No. 23-2281 (E.D. Pa. Mar. 6, 2025).
3Duvall v. Novant Health, Inc., 95 F.4th 778 (4th Cir. 2024).
