Hunton Employment & Labor Perspectives

On March 20, 2025, the Equal Employment Opportunity Commission (“EEOC”) issued two key pieces of guidance: What To Do If You Experience Discrimination Related to DEI at Work and What You Should Know About DEI-Related Discrimination at Work. This guidance provides insights into the issues the EEOC will be monitoring regarding employers’ Diversity, Equity, and Inclusion (“DEI”) policies.

What Are Considered “DEI Policies”?

DEI consists of programs and policies that seek to promote the fair treatment and full participation in the workplace. Traditionally thought of as a remedial measure, DEI policies have focused on balancing the workplace by establishing organizational frameworks and initiatives, such as putting a spotlight on hiring and retaining members of particular groups who may have historically been underrepresented or subject to discrimination, including women, racial and religious minorities, and persons with disabilities.

Identifying Potential DEI Discrimination

Title VII of the Civil Rights Act of 1964 (“Title VII”), a statute enforced by the EEOC, prohibits employment discrimination based on protected characteristics such as race and sex. Different treatment based upon any characteristic protected by Title VII can be unlawful discrimination, no matter which employees are harmed; Title VII’s protections apply equally to all religious, racial, ethnic, and national origin groups, and regardless of sex. The EEOC’s position is that “there is no such thing as ‘reverse’ discrimination; there is only discrimination.” As noted by the guidance, “DEI policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated, in whole or in part, by an applicant’s or employee’s race, sex, or another protected characteristic.”

The EEOC’s guidance cautions that DEI initiatives could violate Title VII if they result in disparate treatment in the terms, conditions, or privileges of employment—including intangible terms such as exclusion from mentoring or sponsorship programs or workplace networking events, exclusion from training or fellowships, and selection preferences for interviews. Prohibited DEI conduct includes actions that may limit, segregate, or classify individuals based on a protected characteristic; examples provided in the guidance include limiting membership in workplace groups (such as affinity groups) to certain protected groups, and separating employees into groups based on a protected characteristic when administering DEI or other trainings—even if the separate groups receive the same programming content. Even if affinity groups or programs aren’t created or maintained by the employer, making company time, facilities, or premises available, and other forms of official or unofficial encouragement or participation may be seen by the EEOC as the employer “sponsoring” those activities, thus making the company liable for any prohibited exclusion by those groups.

According to the EEOC, “[d]epending on the facts, DEI training may give rise to a colorable hostile work environment claim.” If an individual is subjected to unwelcome remarks or conduct based upon race, sex, or other protected characteristics and it either (i) results in an adverse change to a term, condition, or privilege of their employment, or (ii) it is so frequent or severe that a reasonable person would consider it intimidating, hostile, or abusive,  those circumstances may constitute a Title VII violation. Further, an employee’s “[r]easonable opposition to DEI training may constitute protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII.”

Potential Risks

Employees and applicants who have been subjected to unlawful discrimination or retaliation under Title VII are entitled to recover back- and front-pay damages, compensatory damages up to between $50,000 and $300,000 (depending upon the employer’s size), punitive damages, and attorneys’ fees. In cases involving intentional age discrimination, or in cases involving intentional sex-based wage discrimination under the Equal Pay Act, individuals cannot recover compensatory or punitive damages but can recover liquidated damages if the discrimination is found to be especially malicious or reckless.

An individual alleging discrimination based on an employer’s generally applicable policy also has a basis to join with others who have been negatively affected by that policy, creating a significant risk an employer may face a collective action with a nationwide class of employees.

Practical Advice for Employers

To avoid potential issues under Title VII (and potentially applicable state laws), employers should take the following action:

1. Review workplace policies, employee handbook, and training materials to ensure they comply with the EEOC’s recent guidance. Consider whether the EEOC would view them as violative of Title VII, such as by indicating a preference for particular races or sex. Ensure that any employee affinity groups are open to all employees. A “Working Mothers” group or “Minority Mentorship” program that is not open to everyone, for example, may violate Title VII in the EEOC’s view.
2. Provide training to all employees. Ensure your managers and employees are aware of Title VII’s protections against harassment, discrimination, and retaliation. Ensure that such training is inclusive and respectful of all employees, and includes discussion of how employees can report suspected violations.

If in doubt, contact legal counsel. The law and agency guidance around DEI and equal employment policies can be complicated, and the legal landscape—both at the federal and local levels—shifts frequently. Experienced employment counsel can help clients navigate these issues, ensuring the company and employees’ and applicants’ rights are protected.