EEOC and DOJ Release Joint Guidance Regarding Discrimination Related to DEI at Work
Client Alert | March 20, 2025
Gibson Dunn’s DEI Task Force is available to help clients understand what these and other expected policy and litigation developments will mean for them and how to comply with new requirements.
On March 19, 2025, the Equal Employment Opportunity Commission (EEOC) issued guidance entitled “What You Should Know About DEI-Related Discrimination at Work,” which includes eleven questions and corresponding answers addressing the process for asserting a discrimination claim and the scope of protections under Title VII of the Civil Rights Act of 1964 (Title VII) as they relate to DEI programs. The EEOC and the Department of Justice (DOJ) also released a joint one-page technical assistance document entitled “What To Do If You Experience Discrimination Related to DEI at Work,” which provides examples of “DEI-related discrimination” under Title VII and directs employees who “suspect [they] have experienced DEI-related discrimination” to “contact the EEOC promptly.” As described in a press release the EEOC issued yesterday, these documents are designed “[t]o help educate the public about how well-established civil rights rules apply to employment policies, programs, and practices—including those labeled or framed as ‘DEI.’”
The EEOC’s longer question-and-answer guidance explains the process for bringing Title VII claims and discusses the scope of Title VII, including the categories of individuals it protects and the aspects of employment it governs.
The guidance explains that “Title VII protects employees, applicants, and training or apprenticeship program participants,” and “also may apply to interns.” The guidance emphasizes that “Title VII’s protections apply equally to all workers” regardless of whether they are part of a minority group. The EEOC states that it “does not require a higher showing of proof for so-called ‘reverse’ discrimination claims,” in reference to Ames v. Ohio Department of Youth Services (No. 23-1039), in which the Supreme Court is poised to consider whether “majority-group” plaintiffs must meet a “heightened” evidentiary standard for discrimination claims. The guidance explains that in the EEOC’s view, “there is no such thing as ‘reverse’ discrimination; there is only discrimination.”
In response to the question “When is a DEI initiative, policy, program, or practice unlawful under Title VII?” the guidance states that an employment action “may be unlawful” if it is “motivated—in whole or in part—by race, sex, or another protected characteristic.” It broadly defines potentially unlawful DEI initiatives as, among other things, programs that involve “[a]ccess to or exclusion from training (including training characterized as leadership development programs)”; “[a]ccess to mentoring, sponsorship, or workplace networking / networks”; “[i]nternships (including internships labeled as ‘fellowships’ or ‘summer associate’ programs)”; and “[s]election for interviews, including placement or exclusion from a candidate ‘slate’ or pool.” As to what may constitute an adverse action, the EEOC cites to Muldrow v. City of St. Louis, Missouri, et al., 144 S. Ct. 967, 974 (2024), to reiterate that workers bringing discrimination claims “only need to show ‘some injury’ or ‘some harm’ affecting their ‘terms, conditions, or privileges’ of employment,” and that “terms [or] conditions” should be “interpreted broadly.”
The guidance also addresses the unlawful “segregation” of employees, including in the context of employee resource and affinity groups. For example, the EEOC notes that employers may not “separate workers into groups based on” protected characteristics “when administering DEI or any trainings [or] workplace programming,” even if the separate groups “receive the same programming content or amount of employer resources.” The guidance further notes that “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.” The guidance instructs that employers should instead make all trainings and workplace networks open to all employees.
The guidance further provides that employers may not “justify taking an employment action based on race, sex, or another protected characteristic because the employer has a business necessity or interest in ‘diversity,’ including preferences or requests by the employer’s clients or customers.” The EEOC states that “business interests in diversity and equity” have never “been found by the Supreme Court or the EEOC to be sufficient to allow race-motivated employment actions.”
Finally, the guidance addresses DEI-related training and suggests that such trainings “may” create a hostile work environment if there is evidence that the “training was discriminatory in content, application, or context.” The guidance further suggests opposing such trainings may constitute protected activity under Title VII “if the employee provides a fact-specific basis for his or her belief that the training violates Title VII.”
The shorter guidance document released yesterday—What To Do If You Experience Discrimination Related to DEI at Work—shares much of the same information in a one-page guidance document jointly authored by the EEOC and the DOJ.
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. To learn more about these issues, please contact the Gibson Dunn lawyer with whom you usually work, the authors, or any leader or member of the firm’s DEI Task Force or Labor and Employment practice group:
Jason C. Schwartz – Partner & Co-Chair, Labor & Employment Group,
Washington, D.C. (+1 202.955.8242, jschwartz@gibsondunn.com)
Katherine V.A. Smith – Partner & Co-Chair, Labor & Employment Group,
Los Angeles (+1 213.229.7107, ksmith@gibsondunn.com)
Mylan L. Denerstein – Partner & Co-Chair, Public Policy Group,
New York (+1 212.351.3850, mdenerstein@gibsondunn.com)
Zakiyyah T. Salim-Williams – Partner & Chief Diversity Officer,
Washington, D.C. (+1 202.955.8503, zswilliams@gibsondunn.com)
Naima L. Farrell – Partner, Labor & Employment Group,
Washington, D.C. (+1 202.887.3559, nfarrell@gibsondunn.com)
Cynthia Chen McTernan – Partner, Labor & Employment Group,
Los Angeles (+1 213.229.7633, cmcternan@gibsondunn.com )
Molly T. Senger – Partner, Labor & Employment Group,
Washington, D.C. (+1 202.955.8571, msenger@gibsondunn.com)
Greta B. Williams – Partner, Labor & Employment Group,
Washington, D.C. (+1 202.887.3745, gbwilliams@gibsondunn.com)
Zoë Klein – Of Counsel, Labor & Employment Group,
Washington, D.C. (+1 202.887.3740, zklein@gibsondunn.com)
Anna M. McKenzie – Of Counsel, Labor & Employment Group,
Washington, D.C. (+1 202.955.8205, amckenzie@gibsondunn.com)
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