How the DOJ and EEOC Guidance Affects DEI Programs

Guidance from the United States Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) issued on March 19, 2025, have some suggestions as to how those agencies view the most common DEI programs.  This review summarizes the Guidance and the implications that come from the Guidance as well as the President's executive orders as to how most common DEI programs will be interpreted.

1. The Terms “DEI” and “Affirmative Action.”  These terms are not illegal, but they do subject programs with these labels to further scrutiny by government agencies and private plaintiffs due to some history of interpreting such programs as requiring or encouraging some type of racial or sexual preference, preferences that are now clearly prohibited by applicable law.  Employers may wish to consider using different terminology.   

2. Affirmative Action Goals and Timetables.   Affirmative action goals and timetables were previously mandated by executive orders for federal contractors, but now those executive orders have been revoked. Further, the use of “goals and timetables” may suggest that preferences will be given in hiring or promotion to under-represented groups, a result currently deemed unlawful.  Therefore, the use of employment “goals and timetables” should now be deemed as a risk.  

3. Affinity Programs.  In these programs, employers recognize and support so-called “affinity groups," generally viewed as racial, ethnic, sexual–based groups in which matters of particular interest to that race, sex, or ethnic group, are discussed and addressed.  One thing clear from the recent developments is that whatever the affinity group is, it must be open for participation by members of any race, sex, or national origin.  There has been no guidance on what type of subject matter can and should be addressed in such groups, or whether each group can be designated to discuss issues pertaining to a certain race, sex, or ethnic group.  The Guidance simply refers to limiting participation to members of any race, sex, or national origin as a form of “unlawful segregation.”      

4. Equal Employment and Harassment Training.  A great amount of attention has been given to this subject, and such training has generally been deemed constructive.  However, it has been a concern that no racial or ethnic group would be “stereotyped” or made to feel guilt by being a part of that group.  Some claims have been brought before the EEOC and in court of a claimed “hostile environment” created by equal employment or harassment training that relates to these concepts. 

5. Efforts to Widen Recruiting Pools.   Most consider this is an area that employers can lawfully pursue to improve diversity.  Legal limitations may develop, but efforts to encourage applicant flow of a particular racial or sexual group that is unrepresented, is currently generally considered legal. 

6. Mentorship Programs.  Mentorship programs under the current concepts must be open to persons of each and every race, sex, or national origin group.  There is a potential to have mentorship preferences based upon underprivileged status rather than race, sex, or national origin.  

7. Removal of Barriers.   It is generally considered lawful to remove certain barriers to equal employment affecting racial, ethnic, and sexual groups which have been shown to be disadvantaged by certain hiring or promotion criteria that adversely impacts their selection, even if the criteria are applied equally to everyone. Employers could likely lawfully remove criteria that adversely affect equal employment opportunity.  For example, the requirement of certain education degrees may impact certain groups, and not others, so the removal of such educational requirements could create the potential for more hiring of the adversely affected group.  Employers can thus review their criteria for hiring and promotions and eliminate certain requirements disproportionately affecting specific groups.

The Guidance points out the broad nature of eliminating any form of discriminatory disparate treatment, including citing the following examples of prohibited disparate treatment: 

• “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”; and

• “Job duties or work assignments.”

The Guidance addresses common justifications for DEI programs, concluding that actions are still considered unlawful even if a protected characteristic “was just one factor among other factors contributing to the employer’s decision or action.”  The Guidance also notes that neither “client or customer preference,” nor “general business interests in diversity and equity” are valid defenses to discrimination.  The bottom line is that each specific employment action should be guided by the principle of not considering race, color, sex, sexual preference, religion or national origin.  The Guidance also warns against retaliation because an individual has opposed unlawful employment discrimination related to an employer’s policy or practice labeled as “DEI.”  

Federal government contractors have a specific need to be compliant with these principles, as Executive Order No. 14173 requires federal agencies to include a provision in every contract and agreement about which the awardee certifies that it “does not operate any programs promoting DEI that violate any applicable federal anti-discrimination laws.”  Under the False Claims Act (FCA), employees may bring FCA suits on behalf of the government giving them a portion of the proceeds of the action or settlement of claim, if the representation to the government is deemed material and false.  The potential of such a powerful legal action creates a heightened risk for government contractors. 

This article is part of our June 2025 Newsletter. 

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