Articles Discussing Workplace Diversity.

On March 17, 2025, in an unprecedented action, the Equal Employment Opportunity Commission (“EEOC”), under the direction of Acting Chair Andrea R. Lucas, issued 20 extensive letters to large, prominent law firms containing over 100 requests for information and documentation related to their Diversity, Equity, and Inclusion (DEI) practices. This action appears to be a direct response to the March 6, 2025, Executive Order (3/6 EO), which specifically addressed Perkins Coie LLP. Section 4 of the 3/6 EO directed the EEOC Chair to investigate the DEI practices of other major law firms, focusing on potential set-asides or quotas and discriminatory decision-making in areas such as promotions, training, travel, client team assignments, and event participation.

The Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) yesterday issued a joint press release announcing new “technical assistance documents” identifying specific Diversity, Equity and Inclusion (DEI) practices that may be “illegal” or “discriminatory” according to the agencies. Although technical assistance documents do not carry the force of law and are non-binding, they offer interpretive guidance and resources regarding application of existing law and a clear signal of agencies’ enforcement policies and priorities.

By: EEOC Defines Unlawful DEI

Yesterday, the Federal Equal Employment Opportunity Commission published its guidance entitled: What You Should Know About DEI-Related Discrimination at Work.

While the term “illegal DEI” has been discussed at length over the last two months, including in various Executive Orders, this is the first time that an attempt has been made by the Trump administration to define it and publish a definition.

In the EEOC publication, which acts as an FAQ, the EEOC explains the contours of prohibited DEI as follows:

EEOC Definition of Prohibited DEI

Among other things, Title VII bars discrimination (“disparate treatment”) against applicants or employees in hiring, firing, compensation, or any term, condition, or privilege of employment. The prohibition against discrimination applies to a wide variety of aspects of employment. In order to allege a colorable claim of discrimination, workers only need to show “some injury” or “some harm” affecting their “terms, conditions, or privileges” of employment.

The prohibition against disparate treatment, including DEI-related disparate treatment, includes disparate treatment in:

• Hiring
• Firing
• Promotion
• Demotion
• Compensation
• Fringe benefits
• Access to or exclusion from training (including training characterized as leadership development programs)
• Access to mentoring, sponsorship, or workplace networking/networks
• Internships (including internships labeled as “fellowships” or “summer associate” programs)
• Selection for interviews, including placement or exclusion from a candidate “slate” or pool;
• Job duties or work assignments.

Title VII also prohibits employers from limiting, segregating, or classifying employees or applicants based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities. This prohibition applies to employee activities which are employer-sponsored (including by making available company time, facilities, or premises, and other forms of official or unofficial encouragement or participation), such as employee clubs or groups. In the context of DEI programs, unlawful segregation can include limiting membership in workplace groups, such as Employee Resource Groups (ERG), Business Resource Groups (BRGs), or other employee affinity groups, to certain protected groups.

Unlawful limiting, segregating, or classifying workers related to DEI can arise when employers separate workers into groups based on race, sex, or another protected characteristic when administering DEI or any trainings, workplace programming, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources. Employers instead 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.”

The EEOC further explained that DEI considerations of race, sex, or another protected characteristic does not have to be the exclusive (sole) reason for an employer’s employment action or the “but-for” (deciding) factor for the action for the DEI to be illegal. An employment action still is unlawful even if race, sex, or another Title VII protected characteristic was just one factor among other factors contributing to the employer’s decision or action.

The EEOC also explained that if an employer cannot justify taking an employment action based on race, sex, or another protected characteristic because the employer has a business necessity or interest in “diversity,” including preferences or requests by the employer’s clients or customers.

Finally, the EEOC also sanctioned DEI-related harassment claims explaining that “an employee may be able to plausibly allege or prove that a diversity or other DEI-related training created a hostile work environment by pleading or showing that the training was discriminatory in content, application, or context. In cases alleging that diversity trainings created hostile work environments, courts have ruled in favor of plaintiffs who present evidence of how the training was discriminatory (for example, in the training’s design, content, or execution) or, at the motion-to-dismiss stage, who make plausible allegations that explain how the training was discriminatory. For this portion of the Guidance, the EEOC cites to its own briefs submitted in connection with a contested lawsuit.

DOJ Partnering With EEOC On DEI Eradication and Enforcement

This is not the only publication issued yesterday The EEOC and DOJ have also jointly published an information sheet for employees explaining to job applications and employees what illegal DEI looks like and what to do if they recognize DEI in their workplaces or prospective workplaces.

Tips for Employers

Now that the EEOC has outlined what constitutes illegal DEI, employers should use these guidelines in reevaluating their current DEI programs to determine if they are inconsistent with the EEOC’s definition of DEI, and, if so, consider what actions to take as a result. There is no question that the Trump administration and current EEOC will be pursuing aggressive enforcement against businesses that it believes engage in illegal DEI. It recently commenced an investigation into 20 large law firms’ DEI practices. It remains unclear what the courts will do with the EEOC guidelines and whether courts will interpret Title VII consistent with the EEOC. This is an emerging and complicated issue and California employers should be looking closely at their DEI policies with experienced legal counsel.

On March 14, 2025, a three-judge panel of the Fourth Circuit Court of Appeals, issued an order granting the Trump Administration’s motion to stay enforcement of the District Court’s nationwide preliminary injunction on two Executive Orders (EOs) issued by the Trump Administration that target diversity, equity, and inclusion (DEI) programs.

A federal district court judge in Maryland denied the Trump Administration’s motion to stay implementation of a preliminary injunction enjoining aspects of the administration’s EOs that ban “illegal DEI” while the administration appeals the injunction order.

TakeawaysThe federal court clarified that its preliminary injunction against the enforcement of EOs banning “illegal DEI” programs applies to federal executive branch agencies, departments, commissions, and their heads, officers, agents, and subdivisions, not just to those named in the complaint. Employers should continue assessing their DEI programming.Related links

By: Enforcement Strategy Against DEI In Education and Private Sector Outlined in New Executive Order and U.S. Department of Education Publications

Despite the issuance of a sweeping national federal court injunction against President Donald Trump’s January 20, 2025 and January 21, 2025 Executive Orders that seek to eliminate diversity, equity and inclusion (“DEI”) initiatives in government agencies, educational institutions, and the private sector, the Trump Administration is moving forward with renewed efforts to curtail DEI programing and initiatives across the country.

On February 28, 2025, just one week after the injunction was issued, the United States Department of Education’s Office for Civil Rights (“OCR”) published the “Frequently Asked Questions About Racial Preferences and Stereotypes under Title VI of the Civil Rights Act” (“FAQ”). The FAQ was drafted in response to anticipated questions following the OCR’s publication of the “Dear Colleague Letter: Title VI of the Civil Rights Act following the United States Supreme Court’s decision in Students for Fair Admissions v. President & Fellows of Harvard College, 600 U.S. 181 (2023) (“SFFA”) on February 14, 2025. The FAQ specifically addresses issues related to racial classifications, preferences, and stereotypes and explains how the OCR under the Trump Administration will interpret and enforce cases in this area under Title VI (the education-based counterpart to Title VII of the Civil Rights Act that deals with similar employment-based claims).

The FAQ answers a total of fifteen separate questions ranging from issues related to the Trump Administration’s interpretation of the groundbreaking SFFA opinion to how the administration will enforce Title VI laws with respect to racial discrimination, preferencing and stereotyping. The FAQ provides specific examples of what may be prohibited conduct that constitutes discrimination or creates a hostile environment, as well as limitations on First Amendment protected speech at the secondary and post-secondary level.

The FAQ outlines some key points that both employers and educational institutions should consider going forward with respect to any DEI programs to curtail potential legal challenges. The FAQ did not state that DEI programs violate SFFA, but notes that institutions may not engage in discrimination in implementing DEI programs. The FAQ specifically cautions that such programs must not be used to veil discriminatory policies and may not treat students differently (based on race), create a hostile environment for particular groups, or engage in racial stereotyping, preferences or quotas.

The FAQ notes that an assessment of the legality of DEI programs will “depend on the facts and circumstances of each case.” (See Question 8 of FAQ). However, the government did provide examples of specific conduct to avoid. First, the use of race as a “stereotype or a negative” is unlawful (that is assuming one’s membership in a particular racial group means that they will think the same way as other members, be the representative of a particular culture, or contribute to diversity in the same way as another member of that race). Next, the use of membership in any racial group as a “plus factor,” as set forth in SFFA is prohibited (using race as a plus factor for one group “is necessarily a negative factor for another group”). Consistent with recent guidance from the Administration (See Attorney General Pam Bondi February 5, 2025 Memorandum), the FAQ provides that programs focused on interests in particular cultures, heritages, and areas of the world would not violate Title VI, assuming they are open to–they remain lawful as long as they do not exclude others or create a hostile environment.

Just days after the FAQ was published, President Trump signed another DEI-related Executive Order on March 6, 2025 (“March 2025 Executive Order”). In the March 2025 Executive Order, President Trump specifically attacked the law firm Perkins Coie LLP for allegedly engaging in racial discrimination based on the alleged use of “percentage quotas [ ] for hiring and promotion on the basis of race and other categories prohibited by civil rights laws” and the exclusion of “applicants on the basis of race for its fellowships.” On March 11, 2025, Perkins Coie sued the Trump Administration raising multiple constitutional challenges to the March 2025 Executive Order.

Both the FAQ and the March 2025 Executive Order provide important insight regarding the method by which the Trump Administration will target DEI programs and initiatives. Companies that employ race-based quotas are open to attack, as well as those who maintain DEI related programs that exclude other groups based on race or any other protected category. Indeed, the March 2025 Executive Order directs the Chair of the Equal Employment Opportunity Commission (“EEOC”) to review the practices of other unnamed law firms to ensure that they do not reserve certain positions for individuals of a preferred race (i.e., a set aside or quota) or otherwise make decisions related to promotion, client access, trainings, event participation, or travel on a discriminatory basis. The Executive Order directs the EEOC Chair to investigate and take action against law firms who do business with Federal entities to ensure compliance with race and sex-based non-discrimination laws.

While President Trump’s efforts to dismantle DEI programs and challenges thereto are happening in real time, what is evident is that DEI programs are currently an issue that is hotly contested on both sides, and will likely continue to be for the months to come. Staying up to date on the current legal landscape and reviewing DEI policies are of primary importance during this time. CDF will continue to monitor these developments and report on any updates.

In this episode, Jen and Shaw Law Group attorney Kris Lopez bring listeners up to speed on the legal status of DEI programs.