Since the Trump Administration came back into power there has been a lot of talk about the lawfulness of diversity, equity, and inclusion (“DEI”) policies in the workplace. The Biden administration pushed hard for DEI in the workplace. The Trump Administration is also pushing hard – pushing hard against DEI in the workplace – going as far as calling DEI policies potentially unlawful.
This left employers dazed and confused. Well, recent guidance from the U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Justice (“DOJ”) sets out to clarify the confusion.
On March 19, 2025, two technical assistance documents were released by the EEOC and the DOJ to “help educate the public about how well-established civil rights rules apply to employment policies, programs, and practices—including those labeled or framed as “‘DEI.” The press release titled, “EEOC and Justice Department Warn Against Unlawful DEI-Related Discrimination,” that announced the release of these two documents stated that both are “based on Title VII, existing EEOC policy guidance and technical assistance documents and Supreme Court precedent.”
Based on the guidance, under Title VII, DEI procedures, programs, rules, or policies, can be unlawful if employment actions taken are motivated-in whole or in part-by race, sex, or other protected characteristics. Some employment practices the guidance identified as potential DEI-related discrimination include quotas and limiting, segregating, or classifying employees by sex, race, or other protected characteristics. Further, any employment action including hiring, firing, suspensions, demotions, pay reductions, failure to hire or a failure promote that are motivated by a protected trait such as race may be employment discrimination. This applies equally to employees and applicants of all races, sex, nationalities, etc.
While the guidance is new, not all of the protections it seeks to highlight are. Indeed, so-called “reverse discrimination” has always been unlawful under Title VII and current employment laws generally do not allow discrimination against minorities or majorities.
Even still, the guidance (which is not law) is indicative of the Trump Administration’s priorities. This begs the question: what, if anything, should employers do in response?
Here are a few actions that employers can take:
- Remove workplace quotas;
- Ensure that all employment actions are taken based on objective, neutral criteria not related to protected characteristics such as race or sex;
- Ensure that any DEI program or training is open to employees of all backgrounds and not one specific group;
- Review workplace policies to ensure that they are inclusive of employees of all backgrounds, and revise if needed; and
- Contact your employment attorney with any questions or concerns.