DEI Scrutiny Leads to New Advice: The EEOC Issues Updated DEI Guidance
DEI Scrutiny Leads to New Advice: The EEOC Issues Updated DEI Guidance
On March 20, 2025, the Equal Employment Opportunity Commission (EEOC) issued two key pieces of guidance regarding DEI: What To Do If You Experience Discrimination Related to DEI at Work and What You Should Know About DEI-Related Discrimination at Work. It is crucial for employers to understand the potential implications of DEI programs and initiatives, and these pieces of guidance provide insight into what has changed and what the EEOC will be monitoring.
What is DEI-Related Discrimination?
The EEOC states that DEI-related discrimination occurs when an employer’s actions, policies, or practices are motivated, in whole or in part, by an employee’s race, sex or another protected characteristic. Title VII prohibits such discrimination in various aspects of employment, including hiring, firing, promotion, compensation and access to training and mentorship programs. Both pieces of guidance from the EEOC also indicate that DEI-related discrimination applies to access to fellowships/internships, networking, and sponsorship; fringe benefits; demotion; selection for interviews; and job duties and applies to employees, applicants, interns and participants in training programs alike.
Recognizing Disparate Treatment
This guidance from the EEOC cautions that DEI initiatives could violate Title VII by leading to disparate treatment or creating a hostile work environment. Disparate treatment involves treating employees differently based on race, sex or other protected characteristics. The EEOC also indicates that using quotas or “balancing” a workforce based on these characteristics could be unlawful.
Reverse Discrimination
The EEOC explains that now Title VII protections apply to all employees and applicants, not just those part of a minority group, diverse, historically under-represented or women. The guidance also clarifies that there is not a higher showing of proof for reverse discrimination claims (i.e. claims against majority groups based on a protected characteristic).
Avoiding Segregation and Classification
The EEOC also emphasizes that employers may not limit, segregate or classify employees in ways that affect their employment status or opportunities. This includes restricting membership in workplace groups or separating employees during DEI training based on protected characteristics, even if the content is the same for all groups.
Addressing Harassment and Hostile Work Environments
The EEOC explains that workplace harassment is illegal when it results in an adverse change to employment terms or is so severe that it creates a hostile work environment and indicates that DEI training that includes discriminatory content or application can contribute to such an environment. Employers should ensure that DEI programs are designed and executed in a manner that is mindful of the rights of all employees.
Understanding Retaliation
The EEOC explains that Title VII protects employees from retaliation for engaging in protected activities, such as opposing discriminatory practices or participating in investigations. This guidance also indicates that opposing unlawful discrimination that is labeled as DEI could be considered a protected activity for the purposes of retaliation.
Practical Advice for Employers
- Review DEI Policies: Employers should regularly review and update DEI programs and policies to ensure compliance with Title VII. Employers should also consider how these pieces of guidance suggest the EEOC would view the programs and policies and evaluate whether the company might be believed to be using quotas or making employment decisions based on race, sex or other protected characteristics.
- Train Managers and Employees: Employers should provide training on recognizing and preventing discrimination and harassment and evaluate whether anti-discrimination or DEI training would be inclusive and respectful of all employees.
- Encourage Open Communication: Employers should foster and encourage an environment where employees feel comfortable reporting discrimination or harassment without fear of retaliation.
- Consult Legal Experts: Employers should consult with their attorneys to navigate complex DEI-related issues and address compliance with federal and state laws.
Attend Stradling’s Mid-Year Employment Law Update
Register for Stradling's Mid-Year Employment Law Update on May 13, 2025 from 8:00am-10:00am via Zoom. The presentation will bring you up to speed on developments in employment laws so far this year with a focus on practical guidance. During this two-hour presentation, Jared Speier and Lindsay Bowden will discuss important updates related to the flurry of presidential executive orders, recent case law, wage and hour issues and more. This is an update you don't want to miss!
https://stradlinglaw.zoom.us/meeting/register/LFERgUhZTuWN0Ih2soADgQ
Please reach out to your Stradling attorney if you have any questions, or need assistance with your businesses’ compliance with the ever changing California employment laws.
