Illegal DEI Discrimination According to the Trump Administration

Key Takeaways for Employers

Unlike the directives found in Executive Order (EO) 14173, explicit preferences based on protected characteristics such as race or sex have always been illegal. However, some recent prevailing practices may now present risk for employers.

Here are tips based on the Guidance:

• Employers do not need to eliminate wholly their DEI programs, but the focus should be on “inclusivity,” ensuring all employees are respected and have opportunities to succeed. Any consideration of race, sex or other protected characteristics in the terms and conditions of employment may be considered unlawful by the EEOC and DOJ.
• In all their specific employment actions, employers should be guided by the principle to “not consider race, color, sex, sexual preference, religion, or national origin,” the directive that was laid out in EO 14173. No employment action should be made because of a protected characteristic, even if such consideration is only a “plus factor,” “tiebreaker” or otherwise part of the decision-making process.
• Company polices and employee handbooks should be revised if they include demographically based “diversity” goals, targets or quotas that could be considered discriminatory balancing efforts. Similarly, employee compensation, incentives, or other financial or performance metrics tied to such goals, targets or quotas should be reevaluated.
• Leadership programs, affinity groups, employee resource groups and mentorship groups that exclude individuals based on protected characteristics are likely to be viewed as unlawful and should be revisited.
• When making hiring or promotion decisions, companies should not consider race, sex, religion or other protected characteristics.
• Companies should also reconsider “diverse slate” requirements that mandate or exclude candidates based on protected characteristics.
• Segregated training sessions are likely to be viewed as unlawful, even where the content of the presentation is the same.
• Employers should avoid providing training or education that contains heated or controversial rhetoric or themes, or requires affirmations of such controversial items or that otherwise could make employees feel ashamed, angry or uncomfortable because of a negative focus on a particular racial group, ethnicity or sex, based on the EEOC’s position that DEI trainings can potentially create a hostile work environment.
• Though the terms “DEI,” “equity,” “diversity” and the like are not illegal, employers should use them with care to avoid any suggestion that they are being used to make decisions based on protected characteristics.
• Employers should not retaliate against employees who opt out, question or voice respectful opposition to DEI programs or trainings.
• If an employer has a “Chief Diversity Officer” or other similar personnel, careful attention should be given to what those personnel do.
• Companies should conduct a comprehensive review of internal policies and procedures to identify potentially unlawful discrimination and consult legal counsel to answer any questions.

DOJ and EEOC Signals Aggressive Enforcement

The DOJ and EEOC indicate that they will aggressively enforce Title VII as it applies to DEI programs. In the press release accompanying the Guidance, Deputy U.S. Attorney General Todd Blanche said, “The Department of Justice is committed to ending illegal DEI initiatives, policies, and programs.”

Similarly, EEOC Acting Chair Andrea Lucas stated, “Far too many employers defend certain types of race or sex preferences as good, provided they are motivated by business interests in ‘diversity, equity, or inclusion.’ But no matter an employer’s motive, there is no ‘good,’ or even acceptable, race or sex discrimination.”

Relation to Current Litigation Over DEI EOs

There is currently ongoing litigation over the validity of some of the provisions in recent EOs that are directed at DEI. However, the DOJ-EEOC Guidance is not directly affected by that litigation.

On Feb. 21, 2025, Judge Adam Abelson of the U.S. District Court for the District of Maryland issued a nationwide preliminary injunction in Nat’l Ass’n of Diversity Officers in Higher Education v. Trump, __ F. Supp. 3d __, 2025 WL 573764 (D. Md. Feb. 21, 2025), barring the government from enforcing EO provisions that

1) directed all executive agencies to “terminate … ‘equity-related’ grants or contracts” (the Termination Provision),

2) directed all executive agencies to “include in every contract or grant award” a certification, enforceable through the False Claims Act, that the contractor and grantee “does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws” (Certification Provision) and

3) directed the U.S. Attorney General to take “appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI,” “deter” such “programs or principles” and “identify … potential civil compliance investigations” to accomplish such “deter[rence]” (Enforcement Threat Provision).

However, on March 14, 2025, the U.S. Court of Appeals for the Fourth Circuit lifted the nationwide injunction in a unanimous decision, allowing enforcement of these EOs to proceed.

Time will tell whether the Guidance is also challenged in court. If not, in the meantime, the Guidance’s principles will be tested and developed through affirmative enforcement and private lawsuits under Title VII.

Conclusion

The DOJ and EEOC plan to aggressively enforce Title VII in the DEI context. Although the DOJ-EEOC Guidance does not have the force of law or regulation, it does indicate how the EEOC and DOJ interpret Title VII.

Accordingly, employers should use the Guidance to evaluate the lawfulness of existing policies and practices. Several prevailing practices may now present heightened legal risk for employers.

Employers do not need to eliminate entirely their DEI programs and activities, but they must ensure that the protected characteristics are not considered when making employment decisions.