EEOC and DOJ Issue New Guidance Addressing DEI in the Workplace

On March 19, 2025, the U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Justice (“DOJ”) jointly released new guidance addressing the legal implications of diversity, equity, and inclusion (“DEI”) programs in the workplace. This development is notable because it is targeted to private employers, following recent administration and agency efforts aimed at ending DEI programs within the federal government and for federal contractors.

In the guidance, the agencies emphasize that while DEI initiatives remain permissible under federal law, they must be structured in a manner that does not result in unlawful discrimination.

Key Takeaways From the EEOC and DOJ Guidance

The EEOC and DOJ guidance includes a “What You Should Know” document and a one-page “What To Do If You Experience Discrimination Related to DEI at Work” handout. At a high level, the guidance reaffirms that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Pursuant to the guidance, employers implementing DEI programs must ensure compliance with this legal standard to mitigate risks of litigation or agency enforcement actions.

• Avoiding unlawful preferences: DEI initiatives that grant employment opportunities, promotions, or other advantages based solely on protected characteristics may constitute unlawful discrimination under Title VII.
• Avoiding exclusionary practices: DEI-related discussions or workplace groups, including Employee Resource Groups, that limit, segregate, or classify employees by race or sex, or that create a hostile work environment, could expose employers to liability.
• Compliance under anti-harassment laws: Employers may face liability if DEI programs single out employees based on protected characteristics in a way that fosters division or resentment, require employees to participate in discussions that could be perceived as offensive or coercive, or lead to an environment where certain employees feel excluded or disadvantaged due to their race, gender, or protected status.
• Retaliation risks: Employees who express concerns or opposition to certain DEI practices may be protected from retaliation under federal law and policies that penalize employees for expressing dissenting opinions or raising concerns could lead to legal claims.

The Evolving Legal Context

This guidance comes amid several executive orders and increased regulatory scrutiny of DEI programs. As discussed in a prior alert, the U.S. Court of Appeals for the Fourth Circuit recently lifted a preliminary injunction against implementation of Executive Orders 14151 and 14173, which addressed DEI programs for recipients of federal funding. The EEOC has also recently requested detailed information from 20 major law firms regarding, among other things, their hiring, retention, and promotion practices, to assess compliance with anti-discrimination laws. Further, the Department of Education and DOJ have launched investigations into universities’ DEI policies, particularly with respect to scholarships and “exclusive” DEI programs. These actions signal a broader trend that could impact private-sector employers, especially those with strong DEI commitments.

Best Practices for Employers

Employers should stay informed about EEOC and DOJ enforcement trends and legal developments affecting DEI policies and continue to assess company DEI initiatives for unlawful employment preferences or exclusionary practices. Employers should also consider additional training on implementing lawful diversity efforts.

If you have any questions regarding the EEOC and DOJ guidance or their effect on your business, please contact any member of the AGG Employment practice.