“Unlawful DEI” Explained (Or Not) By New EEOC Guidance

The Trump Administration, The EEOC, and DEI

On January 20, 2025, the Trump Administration executed Executive Order 14173, entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” The Order instructed the federal government to combat “illegal private-sector DEI [Diversity, Equity, and Inclusion] mandates, programs, and activities.” The Equal Employment Opportunity Commission (EEOC) enforces federal anti-discrimination laws which make discrimination and harassment based on race, religion, national origin, age, disability, and sex unlawful, which are referred to as protected categories. In furtherance of the Executive Order, on March 19, 2024, the EEOC issued guidance to explain and identify unlawful DEI.

The EEOC’s Guidance

The EEOC’s Guidance makes clear that DEI practices may be unlawful if an employment action is motivated, even in part, by an employee’s protected categories. For instance, if an employer seeks to maintain a diverse workforce in terms of age, race, national origin, or sex and advances those factors by recruiting to these groups (for instance by recruiting from associations that further the interests of women or people of color), that employer, under the Guidance, may be advancing unlawful DEI.

The Guidance provides the following Q and A, which further explains unlawful DEI under the Executive Order:

         When is a DEI initiative, policy, program, or practice unlawful under Title VII?

Under Title VII, an employer initiative, policy, program, or practice may be unlawful if it involves an employer or other covered entity taking an employment action motivated—in whole or in part—by race, sex, or another protected characteristic . . . 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 Guidance also touches upon affinity or resource groups. Specifically, the Guidance explains that giving one group of employees company time, facilities or “official or unofficial encouragement … such as clubs or groups” based on protected categories may constitute unlawful DEI, especially if membership or participation in these groups is limited to that protected category.

Retaliation

The Guidance addresses that unlawful retaliation against an employee for complaining of discrimination applies equally, regardless of an employee’s protected characteristics. This means that complaints of reverse discrimination stemming from unlawful DEI (and claims of retaliation for making reverse discrimination complaints) will be treated under the same standard as complaints of discrimination by employees in under-represented groups.

Instructions and a detailed explanation on how to file a complaint of discrimination for unlawful DEI or retaliation are outlined in the Guidance.

The full Guidance can be found here.

Understanding what may constitute unlawful DEI is complicated and is currently being litigated in various courts throughout the United States. If your organization needs assistance in understanding DEI, the Executive Orders, or state of the law, please contact: Brigette N. Eagan, Esq. Partner and Chair of the Human Resources, Counseling & Compliance Practice Group via email here or call 973.535.7114.