The U.S. Equal Employment Opportunity Commission (EEOC) recently released two public resources titled “What You Should Know About DEI-Related Discrimination at Work” and “What To Do if You Experience Discrimination Related to DEI at Work.” While the documents don’t change existing law, they do provide insight into and clarify how the EEOC will be viewing diversity, equity, and inclusion (DEI) programs going forward through the lens of Title VII of the Civil Rights Act.
Title VII prohibits employment discrimination based on certain protected characteristics, including race, color, religion, sex, and national origin. The EEOC’s guidance now implies that DEI initiatives could violate Title VII if any of the programs, efforts, or policies involve exclusion, limitation, or segregation of individuals based on a protected characteristic. For example, participating in an employee resource group or an affinity group or supporting a mentorship program just for women could violate Title VII.
This guidance has generated concern and confusion at a time when DEI programs are facing public scrutiny and political pushback. The good news is that DEI efforts aren’t inherently unlawful. But the EEOC’s message is clear: employers need to carefully review their existing programs to ensure they stay within the boundaries of federal law, or risk compensatory or punitive damages.
Why This Matters
Many organizations are revisiting their DEI strategies in light of shifting legal and political landscapes. This new guidance underscores the complexity of continuing to create and support inclusive workspaces that also comply with updated nondiscrimination laws. Some organizations might view this as a message or permission to pull back on their DEI efforts. But, there are ways to continue promoting DEI efforts even in this new, rapidly shifting landscape.
Here’s a breakdown of what the EEOC said, what to be cautious about, and how to move forward.
How to Navigate the EEOC’s DEI-Related Discrimination Guidance
| What the Guidance Says | What to Watch Out For | What Your Organization Can Do |
| Employment decisions must not be based on protected characteristics (like race, sex, etc.). | Programs that use quotas or reserve opportunities (e.g. jobs, promotions) for specific identity groups may violate Title VII. | Ensure selection criteria are based on skills, experience, and job-related factors. Consider outreach and development programs that broaden access without limiting others. |
| Segregating employees, even with positive intent, may be discriminatory. | Creating exclusive ERGs or events that exclude people based on race, gender, or another identity can backfire. Training programs or leadership development opportunities (e.g., women’s leadership, BIPOC mentorship) that are restricted by identity may also raise legal concerns. | Open up ERGs and affinity groups to everyone, while still centering underrepresented voices. Use “welcome to all, centered on…” language. Ensure that any identity-focused training or leadership development programs are made available to all interested employees. |
| Harassment can occur under the guise of DEI programming. | If DEI training calls out or shames individuals based on their identity (e.g., white men), it could set the stage for an argument that the company is allowing a hostile work environment. | Use learning experiences that are interactive, inclusive, non-shaming, and rooted in empathy. Emphasize systems and behaviors rather than blaming individuals. |
| Retaliation is prohibited. | Employees who express concerns about DEI practices—especially if they feel targeted—are protected from retaliation. | Train managers on how to respond appropriately to feedback or pushback. Establish clear, confidential feedback channels and follow up with care. Make sure your managers are aware of Title VII’s protections against harassment, discrimination, and retaliation. |
| DEI programs are not inherently unlawful. | Confusion or fear about legality can cause organizations to pause or cut DEI efforts entirely. | Continue your inclusion efforts with care and clarity. Ground them in your organization’s mission and values, and regularly consult legal/compliance advisors. Review your existing workplace policies, documentation, employee handbook, and other materials to make sure they are in compliance with the latest guidance. |
How to Move Forward With Clarity and Care
If your organization is committed to fairness and equity, this is not a time to abandon this work. Instead, consider this a time to refine your efforts. The EEOC’s guidance provides a roadmap for how to do that within the bounds of the law. It calls on employers to be clear-eyed about the purpose of this work, intentional in how they design programs, and inclusive in how they engage employees.
A few quick tips:
- Make inclusion a shared value, not a siloed program.
- Design for equity, but implement for everyone.
- Check your language: “open to all, centered on…” goes a long way.
- Train people managers well—culture lives or dies with them.
- Don’t panic—just get curious, thoughtful, and aligned.
The workplace is evolving, and inclusion work will keep evolving too. With the right mindset and approach, organizations can continue to promote a fair and inclusive workplace that abides by legal guidelines and pushes forward progress at work.