Shortly after taking office, President Trump signed a handful of executive orders aimed at limiting “diversity, equity, and inclusion” (DEI) efforts, including Executive Order 14173 – Ending Illegal Discrimination and Restoring Merit-Based Opportunity (the Executive Order), which sought to terminate all illegal DEI or “diversity, equity, inclusion, and accessibility” (DEIA) efforts (referred to collectively herein as DEI). In part, the Executive Order instructed government agencies to “combat illegal private-sector DEI preferences, mandates, policies, programs, and activities” and encouraged private employers “to end illegal DEI discrimination and preferences.”

The Executive Order left many employers uncertain about the future of their DEI programs, policies, and initiatives. On March 19, 2025, the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ), published informal guidance outlining What You Should Know About DEI-Related Discrimination At Work and What To Do If You Experience Discrimination Related To DEI At Work.¹

What Constitutes DEI-Related Discrimination?

The informal guidance reinforces that the legal framework for analyzing discrimination remains unchanged. A claim of discrimination based on a DEI program, policy, or initiative relies on an analysis under Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits:

• Failing or refusing to hire or discharging any individual, or otherwise discriminating against any individual with respect to an individual’s compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
• Limiting, segregating, or classifying employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect their status as an employee, because of such individual's race, color, religion, sex, or national origin.

The informal guidance provides examples of actions that the EEOC and DOJ believe may result in a finding of unlawful DEI policies, programs, or practices, including but not limited to:

• Using quotas or otherwise “balancing” a workforce based on protected traits;
• Excluding employees or applicants (based in whole or in part by the presence or absence of a protected characteristic) from training (including training characterized as leadership development programs), mentoring/sponsorship programs, and/or fellowship programs;
• Limiting membership in workplace groups, such as Employee Resource Groups (ERGs) or other employee affinity groups, based on the presence or absence of a protected characteristic;
• Limiting employees, based on a protected characteristic, in a way that affects their status or deprives them of employment opportunities, such as employer-sponsored employee activities (including by making available company time, facilities, or premises, and other forms of official or unofficial encouragement or participation);
• 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 and/or the same amount of employer resources);
• Providing DEI training that is discriminatory in content, application, or context; and
• Retaliating against an employee for engaging in reasonable opposition to DEI training that violates federal anti-discrimination law.

SCOTUS Anticipated to Provide Additional Clarity on the EEOC’s Position Regarding Reverse Discrimination Claims

EEOC Acting Chair Andrea Lucas has taken the position that “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.” Simply put, employers cannot take employment actions motivated—in whole or in part—by an employee’s (or applicant’s) protected characteristic(s). To that end, the informal guidance includes statements and reminders that Title VII’s protections apply equally to all individuals, and do not “only apply to individuals who are part of a ‘minority group,’ (such as racial or ethnic minorities, workers with non-American national origins, ‘diverse’ employees, or ‘historically underrepresented groups’), women, or [any] other subset of individuals.” The Q&A also makes clear that the “EEOC’s position is that there is no such thing as ‘reverse’ discrimination; there is only discrimination” and that the EEOC does not require a higher standard of proof “for so-called ‘reverse’ discrimination claims.” 

It is worth noting that the Supreme Court is currently considering whether the claims of “majority-group” plaintiffs must meet a heightened evidentiary standard (i.e., “background circumstances to support the suspicion that the defendant is the unusual employer who discriminates against the majority”) to prevail on a Title VII claim (Ames v. Ohio Department of Youth Services (No. 23-1039). A decision in this case is expected by summer 2025. As a result, employers are expected to have additional clarity in the coming months as to whether a majority-group plaintiff has a higher burden than a minority-group plaintiff in alleging discrimination.

Anti-Discrimination Trainings Do Not Appear Contrary of the Informal Guidance

Two of the EEOC Q&As address the potential unlawfulness of DEI trainings, which has left employers uncertain about how to proceed with routine anti-harassment trainings. The Q&A states 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.” Notably, the authority relied on by the EEOC makes clear that anti-harassment trainings remain lawful, while also pointing out that trainings that fall under the umbrella of DEI are varied. 

The informal guidance cites to the Brief of the EEOC As Amicus Curiae in Support of Neither Party in Vavra v. Honeywell International, Inc. (No. 23-2823 (7th Cir. Feb. 6, 2024)) (the EEOC Brief) which clarified that

“diversity trainings…can encompass a wide swath of anti-discrimination trainings. Anti-discrimination trainings, including unconscious bias trainings, are not discriminatory per se,” as “nothing about them inherently involves a ‘preference’ for any group. Indeed, such trainings can serve as vital measures to prevent or remediate workplace discrimination. They are therefore not categorically the ‘type of activity’ that would support a discrimination claim.”

In support of its assertion, the EEOC Brief cites three cases in which courts rejected the theory that anti-discrimination trainings categorically violate Title VII. The EEOC Brief goes on to discuss how anti-discrimination trainings can play “a key role in preventing discrimination” and achieving Title VII’s “primary goal” (as determined by the United States Supreme Court) which “is not to provide redress but to avoid harm” (emphasis added). 

In contrast, training and workplace requirements that are discriminatory in content, application, and/or context may create a hostile work environment. The EEOC Brief provided two examples of potentially unlawful trainings in which courts ruled in favor of the employee at the motion-to-dismiss stage. In one case, mandatory training involved “role reversal” whereby participants were subject to sexually demeaning treatment and conduct. Another example included a training session in which facilitators “ascrib[ed] negative traits to white people or white teachers without exception and as flowing inevitably from their race.”

Ultimately, in analyzing the cited EEOC Brief and underlying cases, the EEOC has opined that true anti-harassment trainings designed to promote nondiscrimination and reinforce workplace anti-harassment initiatives were lawful. However, when such trainings incorporate a clear, personal, and targeted approach against an individual or group on the basis of a protected characteristic, such mandatory trainings may fall within the scope of the unlawful DEI-related trainings alluded to in the EEOC’s Q&A.

Takeaways

While the informal federal guidance explicitly includes reference to a variety of policies, programs, and initiatives that may, depending on the facts and circumstances involved, constitute an unlawful DEI practice, the analysis for what is or is not permissible under federal law remains largely unchanged. DEI programs must comply with Title VII. To that end, employers should evaluate with counsel:

• Employer-sponsored training and mentoring program.
• ERG structures and activities.
• Company-required employment-related trainings. 
• Hiring or promotional quotas or quota-like practices.

Meanwhile, employers should ensure that their policies and procedures comply with and accurately capture any state (and, as applicable, local) anti-harassment and non-discrimination requirements which, regardless of movement taking place at the federal level, continue to apply. In some states, including but not limited to California, Illinois, and New York, such laws require employers to conduct (in some cases, on an annual basis) employee and/or supervisor anti-harassment trainings. The informal guidance does not replace or supersede these obligations.

For more information on this topic, or to learn how Godfrey & Kahn can help provide anti-harassment training and/or analyze how to bring a current DEI program into compliance with the recent informal federal guidance, contact a member of our Labor, Employment and Immigration practice.