On March 19, 2025, the Equal Employment Opportunity Commission and the Department of Justice issued two technical assistance documents regarding “diversity, equity, and inclusion” (“DEI”) programs in the workplace. Consistent with the Trump Administration’s Executive Orders regarding DEI, these technical assistance documents warn of the potential illegality of certain employment policies or initiatives under Title VII of the Civil Rights Act of 1964.

The EEOC and DOJ jointly released “What To Do If You Experience Discrimination Related to DEI at Work,” which is a one-page document directed at job applicants and employees. The EEOC also released a longer document styled in a question-and-answer format, “What You Should Know About DEI-Related Discrimination at Work.”

As both documents explain, “DEI” is not defined in Title VII, or any other federal employment law. The documents explain that policies, programs, or practices, whether or not styled as “DEI,” may be unlawful under Title VII if they involve an employer or other covered entity taking an employment action against an applicant, employee, intern, or training program participant that is “motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.”

The documents emphasize that Title VII’s protections apply equally to majority-group and minority-group individuals. The EEOC reiterates its position that, contrary to the holdings of five circuits (the Sixth, Seventh, Eighth, Tenth, and D.C. Circuits), majority-group plaintiffs do not need to meet a heightened evidentiary standard in order to prevail on a Title VII claim. The question of whether majority-group plaintiffs must meet a heightened evidentiary standard (the “background circumstances” test) to succeed on a Title VII claim is coming before the Supreme Court this term in Ames v. Ohio Department of Youth Services (No. 23-1039). In that case, the EEOC submitted an amicus brief arguing against the “background circumstances” test.

Invoking the Supreme Court’s recent decision in Muldrow v. City of St. Louis, Missouri, 601 U.S. 346 (2024), the guidance highlighted that “workers only need to show ‘some injury’ or ‘some harm’ affecting their ‘terms, conditions, or privileges’ of employment” to prevail on a claim of discrimination. The guidance honed in on mentoring and training programs, stating that “access to or exclusion from training” or “leadership development programs” and “access to mentoring, sponsorship, or workplace networking/networks” should not be limited to membership in certain protected groups. Likewise, the guidance advised that Title VII prohibits segregating employer-sponsored activities such as employee clubs, affinity groups, training, or workplace programming by race, sex, or other protected characteristics “in a way that affects their status or deprives them of employment opportunities.” Thus, the guidance emphasized that employers 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.”

The guidance further explains that otherwise illegal discrimination cannot be justified by “business necessity,” such as the employer’s interest in promoting diversity in the workplace or the preferences or requests by the employer’s customers for a “diverse team” to work on the customers’ projects. Although Title VII allows employers to raise a bona fide occupational qualification as an affirmative defense to certain actions based on religion, sex, or national origin, the defense is very limited and furthermore cannot apply to actions based on race or color. In short, the EEOC states that “[n]o general business interests in diversity and equity (including perceived operational benefits or customer/client preference)” are “sufficient to allow race-motivated employment actions.”

On one hand, these guidance documents do not change legal obligations applicable to employers—Title VII prohibited discrimination on the basis of protected statuses, regardless of whether an individual was in a majority or minority group, both before and after the guidance was issued. On the other hand, this guidance is significant as a further signal of the current administration’s and EEOC’s enforcement priorities.

Stites & Harbison employment attorneys are carefully watching these developments. If you have any questions regarding workplace DEI policies or complying with anti-discriminations laws, please contact a Stites & Harbison employment attorney to discuss.