EEOC Issues New Guidance: Avoiding Unlawful DEI-Related Discrimination, by Mark Carver, Esq., 4-1-2025
On March 19, 2025, the Equal Employment Opportunity Commission (EEOC) issued guidance addressing how employers’ Diversity, Equity, and Inclusion (DEI) initiatives, while perhaps well-intentioned, may sometimes result in unlawful discrimination. The EEOC guidance advises employers that anti-discrimination laws prohibit workplace decisions and actions based on protected characteristics, even when those decisions and actions were intended to promote diversity and equity.
Understanding the EEOC
The EEOC is a federal agency tasked with enforcing laws that protect applicants and employees from workplace discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age (40 or older), disability, and genetic information. To help employers and individuals better understand their rights and responsibilities regarding DEI programs, the EEOC issued guidance confirming that DEI initiatives must comply with anti-discrimination laws.
The EEOC’s Guidance.
On March 19, 2025, the EEOC published the following:
- Press Release: EEOC and Justice Department Warn Against Unlawful DEI-Related Discrimination.
https://www.eeoc.gov/newsroom/eeoc-and-justice-department-warn-against-unlawful-dei-related-discrimination - What To Do If You Experience Discrimination Related to DEI at Work
https://www.eeoc.gov/what-do-if-you-experience-discrimination-related-dei-work - What You Should Know About DEI-Related Discrimination at Work
https://www.eeoc.gov/wysk/what-you-should-know-about-dei-related-discrimination-work
Key Takeaways from the EEOC’s March 2025 Guidance
- Employment actions motivated by race, sex, or other protected characteristics—even if intended to foster diversity—are prohibited.
- The use of quotas or “workforce balancing” based on protected characteristics are prohibited.
- Segregating employees based on race, sex, or other protected traits (by creating clubs, groups, or training opportunities based on a protected trait) is prohibited.
The EEOC’s guidance states that the widespread implementation of DEI programs in the last few years did not change the longstanding legal prohibitions against the use of race, sex, and other protected characteristics in employment decisions or actions. The guidance makes clear that employment decisions or actions motivated by protected characteristics, such as race or sex, are unlawful, even when they are intended to promote diversity or equity.
In addition to unlawfully using quotas or otherwise “balancing” a workforce by race, sex, or other protected traits, the EEOC provided other examples of DEI-related discrimination:
- Taking an employment action motivated (in whole or in part) by race, sex, or another protected characteristic; and
- Limiting, segregating, or classifying employees based on race, sex, or other protected characteristics, e.g., employee clubs, groups, or training should not be segregated by race or sex.
Per the Guidance, an employer is not justified in taking an employment action based on race, sex, or another protected characteristic because the employer has a business necessity or interest in diversity. In sum, Title VII does not provide any “diversity interest” exception to these rules. Furthermore, 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.
Best Practices for Employers: Achieving DEI While Ensuring Compliance
Employers can promote diversity and inclusion responsibly by taking these steps:
- Review Policies: Ensure workplace policies avoid any employment decisions based on race, sex, or other protected traits. Employees have the right to equal opportunities, free from discrimination.
- Avoid Retaliation: An employee may engage in protected activity by opposing a DEI action or program because the employee reasonably believes it is discriminatory. Retaliating against an employee for such opposition is unlawful.
- Provide Training: Train managers and HR personnel on how to legally promote and achieve diversity in the workplace without engaging in unlawful discrimination.
- Minimize Unconscious Bias: Reduce unconscious bias by removing identifying information from applications or resumes and train hiring managers to recognize and mitigate biases that may influence their decisions.
- Expand Recruitment Efforts: Broaden outreach strategies to attract diverse candidate pools without relying on discriminatory practices.
- Seek Legal Advice: Consult with legal experts to ensure policies and initiatives comply with anti-discrimination laws while supporting DEI goals.
By aligning DEI programs with the EEOC’s guidance, employers can foster workplace diversity without exposing themselves to legal risks.
Author: Mark Carver, Esq. is a Partner in Kaufman Dolowich’s Louisiana office
