by On March 19, 2025, the Equal Employment Opportunity Commission (EEOC) published guidance defining employer diversity, equity, and inclusion (DEI) practices that are unlawful under Title VII of the Civil Rights Act. Employers should review the agency’s interpretation of unlawful employer practices, particularly as detailed in the footnotes to the guidance, in evaluating what policies or practices may need to be changed or eliminated. Employers may be surprised by the breadth of practices the EEOC identifies as demonstrating discrimination. https://www.eeoc.gov/wysk/what-you-should-know-about-dei-related-discrimination-work.
The EEOC emphasizes that an employer initiative, policy, program, or practice may be unlawful if it involves an employer taking an employment action motivated—in whole or in part—by race, sex, or another protected characteristic. In keeping with a recent U.S. Supreme Court case regarding the employee’s burden of proof in discrimination cases, the agency points out that an employee only needs to show ‘some harm’ affecting their terms, conditions, or privileges due to an employer’s practices to make a viable complaint of discrimination.
The guidance uses a FAQ format to explain how DEI programs and practices can result in complaints of unlawful discrimination. The answers address questions that have been raised by many employers about what constitutes an unlawful DEI practice or policy. The information goes further by explaining how specific kinds of employer actions are unlawful. For example, employer practices called out by the agency as unlawful segregation if motivated by a protected characteristic include employer practices regarding:
- Access to or exclusion from training or leadership development programs
- Access to mentoring, sponsorship, or workplace networking
- Internships programs
- Selection for interviews, including placement or exclusion from a candidate “slate” or pool
- Providing company resources such as work time or facilities for groups that limit membership to members of certain protected groups.
The new guidance includes many other examples of practices that could result in successful discrimination charges. Human resources professionals and others involved in people management will want to review the guidance closely as they evaluate the employer’s potential areas of risk.
