Five Key Points on DEI from EEOC/DOJ Guidance

The Equal Employment Opportunity Commission (the “EEOC”) issued two technical guidance documents on March 19, 2025 that every employer should read. The first document, issued jointly with the Department of Justice is titled “What To Do If You Experience Discrimination Related to DEI at Work.” This publication encourages employees to file charges with the EEOC if they believe they have experienced DEI related discrimination. The second publication, issued solely by the EEOC, is titled “What You Should Know About DEI-Related Discrimination at Work,” and is a series of questions and answers describing the EEOC’s position that certain DEI related practices may be unlawful under Title VII of the Civil Rights Act of 1964. These documents indicate that the EEOC and DOJ believe the following practices are problematic:

1. Employee resource or affinity groups that limit membership to employees with designated protected characteristics. Employee resource groups or affinity groups that seek to support employees who possess particular protected characteristics should be open to all employees, even those that do not possess the protected characteristics. For example, a women’s affinity group should not prohibit men from participating, because doing so is viewed as violating Title VII’s prohibition against segregating or classifying employees based on protected characteristics.
2. Training programs that are segregated by race, sex or another protected characteristic violate Title VII even if the same training is provided to all groups. Some employers have conducted DEI or other training programs where employees are segregated by race or gender, and the EEOC takes the position this practice is against the law.
3. Diverse interview requirements where the employer has a practice or policy of requiring that pools of candidates for job openings or promotions must contain a minimum number of diverse candidates potentially excluding candidates because they do not possess those diverse protected characteristics. The EEOC indicates that these policies or practices violate the prohibition in Title VII against making any employment selection decision based on a protected characteristic.
4. DEI training programs have been accused of creating a hostile work environment, depending on the content and tone of the training. The EEOC states that “depending on the facts, an employee may be able to plausibly allege or prove that a diversity or other DEI related training created a hostile work environment” but does not provide particular guidance about what fact patterns might give rise to such a claim.
5. The EEOC states that “opposition to a DEI training may constitute protected activity if the employee provides a fact specific basis for his or her belief that the training violates Title VII.” Unfortunately, the EEOC does not elaborate on what facts might support such a claim. Employers should carefully avoid any action that could be viewed as retaliation against an employee who complains about the tone or content of a DEI or diversity training.

Prudent employers should review their employee resource/affinity group policies, interview practices, and DEI or diversity training programs with counsel to ensure that they are not creating a risk of EEOC charges from these programs and policies. The employment lawyers at Poyner Spruill are ready to assist with such analysis.