DOJ and EEOC Issue Statements on Administration’s Interpretation of "Illegal DEI"

On March 19, 2025, the United States Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) issued two technical assistance documents that illuminate how these federal agencies will define "illegal DEI," as referred to in many of the President's Executive Orders in the past two months.

The two documents, titled "What to Do If You Experience Discrimination Related DEI at Work" and "What You Should Know About DEI-Related Discrimination at Work," provide insight to employees and employers on employment practices the EEOC and DOJ may consider discriminatory under Title VII of the Civil Rights Act of 1964, as amended.

EEOC and DOJ acknowledge in these publications that "DEI" is a broad term that is not defined in Title VII. The federal agencies state that "[u]nder Title VII, DEI policies, programs, or practices may be unlawful if they involve an employer…taking an employment action motivated – in whole or in part – by an employee's race, sex or another protected characteristic." The language in the EEOC and DOJ's statements appear to track the language in the 1991 amendments to Title VII that established unlawful employment practices occur when race, color, religion, sex, or national origin is a motivating factor for any employment practice, even though other factors may have motivated the practice. 42 U.S.C. § 2000e-2(m).

Examples provided by DOJ and EEOC of unlawful "DEI-related" discrimination barred by Title VII include:

• Hiring, promotion, compensation, firing, demotion, exclusion from mentoring or training programs, exclusion from fellowship motivated in whole or in part by race, sex, or another characteristic protected by Title VII.
• Affinity groups and Employer Resource Groups whose membership is open only to certain protected groups, or that excludes certain protected groups.
• DEI training that creates a hostile work environment based on unwelcome remarks or comments based on protected categories.
• Retaliation for objecting to or opposing employment discrimination related to unlawful DEI.

The DOJ and EEOC cautioned that "Employers … should provide 'training and mentoring that provides workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascend to upper-level jobs.' Employers also should ensure that 'employees of all backgrounds …have equal access to workplace networks.'" (Emphasis in original).

For more information on suggested ways employers can comply with Title VII to avoid EEOC and DOJ enforcement actions, please reach out to any member of our Labor & Employment law team.