On March 19, 2025, EEOC Acting Chair, Andrea Lucas, issued a technical assistance document entitled “What You Should Know About DEI-Related Discrimination at Work” ( “ DEI Technical Assistance Document 1”). On the same date, the EEOC and the US DOJ also issued a document entitled “What to Do if You Experience Discrimination Related to DEI at Work” (“DEI Technical Assistance Document 2”). These technical assistance documents are consistent with President Trump’s executive orders aimed at the elimination of unlawful DEI employment discrimination (“Executive Orders”). It is important to note that the Executive Orders are being legally challenged. In addition, it is further important to note that DEI Technical Assistance Document 1 is Acting Chair Lucas’ position and is not legally binding because it was issued without an EEOC vote.
On April 3, 2025, ten former high ranking EEOC officials (“Former Officials”) issued a public letter (“Public Letter”) in response to DEI Technical Assistance Document 1. The Public Letter, which does not carry any legal weight because it was issued by former EEOC officials, refers to DEI Technical Assistance Document 1 as the “Acting Chair’s document”. In the Public Letter, the Former Officials make their strong opposition to DEI Technical Assistance Document 1 very clear in the second paragraph, which provides as follows:
- The Acting Chair’s document seems designed to convey the message that initiatives to advance diversity, equity, and inclusion (“DEI”), which the document does not define, are fraught with legal peril. The document ignores important aspects of applicable law, as well as the reality that proactive efforts are still needed in America’s workplaces to provide equal opportunity for all employees and applicants. To the extent the Acting Chair’s document chills such efforts, we believe it does a grave disservice to employers, their employees, and America’s economy.
We encourage employers to read Technical Assistance Documents 1 and 2 and the Public Letter in their entirety. Although these documents are not legally binding, they do give insight into the Trump Administration’s position as to DEI programs and the counterarguments put forth by the Former Officials. The members of the firm’s employment and benefits section will be closely monitoring future developments regarding the law applicable to DEI programs and welcome the opportunity to assist clients with advice as to compliance and guidance regarding same.
