Top 5 Legal Risks In DEI Practices Every Employer Must Know

Insights from EEOC and DOJ

The Equal Employment Opportunity Commission (“EEOC”) issued two technical guidance documents on March 19, 2025, that every employer should read. The first document, issued jointly with the Department of Justice, is titled “What To Do If You Experience Discrimination Related to DEI at Work.” 

This publication encourages employees to file charges with the EEOC if they believe they have experienced DEI-related discrimination. The second publication, issued solely by the EEOC, is titled “What You Should Know About DEI-Related Discrimination at Work,” is a series of questions and answers describing the EEOC’s position that certain diversity, equity and inclusion or DEI-related practices may be unlawful under Title VII of the Civil Rights Act of 1964. These documents indicate that the EEOC and DOJ believe the following practices are problematic:

 

1. Limited Membership to Employee Resource Groups

Employee resource or affinity groups that limit membership to employees with designated protected characteristics are viewed as problematic in these documents. Employee resource groups or affinity groups that seek to support employees who possess particular protected characteristics should be open to all employees, even those who do not possess the protected characteristics. For example, a women’s affinity group should not prohibit men from participating because doing so is viewed as violating Title VII’s prohibition against segregating or classifying employees based on protected characteristics.

2. Segregated Training Programs

Training programs that are segregated by race, sex or another protected characteristic may violate Title VII even if the same training is provided to all groups. Some employers have conducted DEI or other training programs where employees are segregated by race or gender, and the EEOC takes the position that this practice is against the law.

3. Diverse Interview Requirements for Candidates

Diverse interview requirements where the employer has a practice or policy of requiring that pools of candidates for job openings or promotions must contain a minimum number of diverse candidates, potentially exclude candidates because they do not possess those diverse protected characteristics. The EEOC indicates that these policies or practices violate the prohibition in Title VII against making any employment selection decision based on a protected characteristic.

4. Tones and Content of Employer DEI Training

DEI training programs have been accused of creating a hostile work environment, depending on the content and tone of the training. The EEOC states that “depending on the facts, an employee may be able to plausibly allege or prove that a diversity or other DEI-related training created a hostile work environment” but does not provide particular guidance about what fact patterns might give rise to such a claim.

5. Employees in Opposition to a DEI Training

The EEOC states that “opposition to a 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.” Unfortunately, the EEOC does not elaborate on what facts might support such a claim. Employers should carefully avoid any action that could be viewed as retaliation against an employee who complains about the tone or content of a DEI or diversity training.

What Should Employers Do Now? 

• Review employee resource/affinity group policies to ensure any person can be a member of the group regardless if they do not possess the protected characteristics of the resource group. 
• Ensure DEI and diversity training programs include all employees so that the same training is provided to all employees.
• Review interview practices to ensure that all candidates are being considered equally and there are no requirements for diverse candidates.
• Review DEI and diversity training programs with counsel to ensure there is no risk of EEOC charges from programs and policies. Employers should aim to have training programs with tones that do not create a hostile working environment for employees. 

Susie Gibbons serves as Of Counsel at Poyner Spruill LLP.