Illegal DEI Discrimination According to the Trump Administration

The Trump Administration’s focus on ending “illegal DEI discrimination” was recently operationalized by the U.S. Equal Employment Opportunity Commission, and we’re taking a look at its implications for your HR duties.

Highlights

• The U.S. Equal Employment Opportunity Commission (EEOC) and U.S. Department of Justice (DOJ) have issued joint guidance on the types of diversity, equity and inclusion (DEI) activities they view as illegal. Employers may use the guidance to evaluate existing policies and practices.
• The guidance is based on Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of race, color, religion, sex or national origin. The EEOC and DOJ have signaled that they will aggressively scrutinize DEI programs as part of their enforcement of Title VII.
• Practices that may present risk for employers based on the guidance include the following: 1) Using race or gender to determine access to or exclusion from training, including leadership-development programs; 2) mentorship and networking and affinity groups based on race, ethnicity or gender; and 3) using immutable characteristics in order to determine placement or exclusion from a candidate “slate” or pool.
• Employers do not need to eliminate wholly their DEI programs, but the focus should be on the “inclusivity” aspect – ensuring all employees are respected and have opportunities to succeed. However, 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.

The Trump Administration’s focus on ending “illegal DEI discrimination” was recently operationalized by the U.S. Equal Employment Opportunity Commission (EEOC) and U.S. Department of Justice (DOJ) in guidance releasedon March 19, 2025.

The agencies released two documents “focused on educating the public about unlawful discrimination related to diversity, equity, and inclusion (DEI) in the workplace.” The first document is an employment poster-style notice issued jointly by the EEOC and DOJ, “What To Do If You Experience Discrimination Related to DEI at Work.”

These documents (the Guidance) provide direction to employers who may have questions about how to continue to support an inclusive workplace while also complying with federal laws that prohibit discrimination. The Guidance in and of itself does not have the force of law and is not a formal regulation, but it does provide important insight into the priorities and legal views of the EEOC and DOJ when it comes to DEI programs.

The Standard: The Civil Rights Act of 1964

The Guidance is based on Title VII of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating in hiring, firing, training, and other terms and conditions of employment because of race, sex, religion and other protected characteristics.

In particular, it is a violation for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.”₁

Title VII also prohibits “limit[ing], segregat[ing], or classify[ing] [] employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”₂

Title VII likewise prohibits discrimination on these bases in regard to “admission to, or employment in, any program established to provide apprenticeship or other training,” including “on-the-job training programs.”₃

According to the EEOC and DOJ, “[u]nder Title VII, 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 Guidance

The EEOC provides the following guidance regarding when DEI would be considered unlawful under Title VII:

The prohibition against discrimination applies to a wide variety of aspects of employment. In order to allege a colorable claim of discrimination, workers only need to show “some injury” or “some harm” affecting their “terms, conditions, or privileges” of employment. The prohibition against disparate treatment, including DEI-related disparate treatment, includes disparate treatment in:

• Hiring;
• Firing;
• Promotion;
• Demotion;
• Compensation;
• Fringe benefits;
• Access to or exclusion from training (including training characterized as leadership development programs);
• Access to mentoring, sponsorship, or workplace networking / networks;
• Internships (including internships labeled as “fellowships” or “summer associate” programs);
• Selection for interviews, including placement or exclusion from a candidate “slate” or pool;
• Job duties or work assignments

The EEOC describes particular activities that it considers unlawful, including race- or gender-conscious trainings and mentorship groups:

This prohibition applies to employee activities which are employer-sponsored (including by making available company time, facilities, or premises, and other forms of official or unofficial encouragement or participation), such as employee clubs or groups.

In the context of DEI programs, unlawful segregation can include limiting membership in workplace groups, such as Employee Resource Groups (ERG), Business Resource Groups (BRGs), or other employee affinity groups, to certain protected groups.

Unlawful limiting, segregating, or classifying workers related to DEI can arise when employers separate workers into groups based on race, sex, or another protected characteristic when administering DEI or any trainings, workplace programming, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources.

Employers instead should provide “training and mentoring that provides workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascend to upper-level jobs.” Employers also should ensure that “employees of all backgrounds … have equal access to workplace networks.”

The EEOC also addresses common justifications for DEI programs, indicating its intent to broadly enforce the standard regardless of an employer’s motivation for implementing DEI policies:

• “An employment action still is unlawful even if race, sex, or another Title VII protected characteristic was just one factor among other factors contributing to the employer’s decision or action.”
• “Client or customer preference is not a defense to race or color discrimination … Employment decisions based on the discriminatory preferences of clients, customers, or coworkers are just as unlawful as decisions based on an employer’s own discriminatory preferences.”
• “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 by pleading or showing that the training was discriminatory in content, application, or context.”
• “The EEOC does not require a higher showing of proof for so-called ‘reverse’ discrimination claims. The EEOC’s position is that there is no such thing as ‘reverse’ discrimination; there is only discrimination.”
• “Title VII prohibits employers and other ‘covered entities’ from retaliating because an individual has engaged in protected activity under the statute … Depending on the facts, protected opposition could include opposing unlawful employment discrimination related to an employer policy or practice labeled as ‘DEI.'”

The EEOC and DOJ also warn that “unlawfully using quotas or otherwise ‘balancing’ a workforce by race, sex, or other protected traits” can violate Title VII.