EEOC and Justice Department Warn Against Unlawful DEI-Related Discrimination

WASHINGTON -- Today, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) released two technical assistance documents focused on educating the public about unlawful discrimination related to “diversity, equity, and inclusion” (DEI) in the workplace.

DEI is a broad term that is not defined in Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination based on protected characteristics such as race and sex. Under Title VII, DEI initiatives, 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 employee’s or applicant’s race, sex, or another protected characteristic.

In the past five years, DEI policies, programs, and practices have become increasingly prevalent in many of our nation’s largest and most prominent businesses, universities, and cultural institutions. The widespread adoption of DEI, however, does not change longstanding legal prohibitions against the use of race, sex, and other protected characteristics in employment.

To help educate the public about how well-established civil rights rules apply to employment policies, programs, and practices—including those labeled or framed as “DEI”—the EEOC and the DOJ today released a joint one-page technical assistance document, “What To Do If You Experience Discrimination Related to DEI at Work.” The EEOC also released a longer question-and-answer technical assistance document, “What You Should Know About DEI-Related Discrimination at Work.” Both documents are based on Title VII, existing EEOC policy guidance and technical assistance documents and Supreme Court precedent.

“Far too many employers defend certain types of race or sex preferences as good, provided they are motivated by business interests in ‘diversity, equity, or inclusion.’ But no matter an employer’s motive, there is no ‘good,’ or even acceptable, race or sex discrimination,” said EEOC Acting Chair Andrea Lucas. “In the words of Justice Clarence Thomas in his concurrence in Students for Fair Admissions, ‘two discriminatory wrongs cannot make a right.’”

Lucas emphasized, “While the public may be confused about what rules apply to DEI, the law itself is clear. And there are some serious implications for some very popular types of DEI programs. These technical assistance documents will help employees know their rights and help employers take action to avoid unlawful DEI-related discrimination.”

“The Department of Justice is committed to ending illegal DEI initiatives, policies, and programs,” said Deputy Attorney General Todd Blanche. “The technical assistance document provides clear information for employees on how to act should they experience unlawful discrimination based on DEI practices.”