In our March 24 2025, blog post we discussed the federal Equal Employment Opportunity Commission’s (EEOC) recent guidance regarding what constitutes unlawful “diversity, equity, and inclusion” (DEI) policies. Among other things, the guidance specifies that employees may claim a “hostile work environment’ (a form of unlawful “harassment”) by showing that an employer’s DEI training was discriminatory in content, application, or context.
Under Title VII of the Civil Rights Act of 1964 (Title VII), harassment based on race, sex, or another protected characteristic is unlawful where (1) enduring the offensive conduct becomes a condition of continued employment, or (2) the conduct is sufficiently severe or pervasive to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
According to the EEOC, “Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people,” such as physical assaults, threats, offensive jokes, slurs, ridicule or mockery, insults and put-downs, offensive objects or pictures, and interference with someone’s work performance.
The EEOC’s recent DEI guidance states that, “[d]epending 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 by pleading or showing that the training was discriminatory in content, application, or context.” Although one, or even several ,DEI training session may not give rise to a colorable hostile work environment claim, the EEOC notes that courts have ruled in favor of employees who demonstrated that the training was discriminatory in design, content, or execution. In a footnote to this section of the guidance, the EEOC refers to its amicus brief submitted in a federal appellate court case in which the court stated:
[A]lthough discussions about race are permitted under Title VII—and indeed, could ‘contribute positively to nuanced, important conversations about how to form a healthy and inclusive working environment … the way these conversations are carried out in the workplace matters: When employers talk about race—any race—with a constant drumbeat of essentialist, deterministic, and negative language, they risk liability under federal law.’
On the other hand, where an employee fails to provide evidence of discrimination, the EEOC acknowledges that, “the mere fact that an employer requires employees to participate in an anti-discrimination training is not enough to show that the training falls into a category of conduct prohibited by Title VII.”
Next Steps
To ensure DEI programs and policies are compliant with the law, employers should audit their job descriptions and interview questions to ensure they do not include preferences based on race, sex, or another protected characteristic. Also, promotions and other employment-related actions should be transparent and follow standardized procedures rather than focusing on “workplace balancing.” Finally, employee benefits, such as mentorships and leadership training, should be offered to all employees, regardless of their protected characteristics.
Although the EEOC guidance does not have the effect of law, following its guidelines will help employers continue with their DEI programs without incurring legal liability.
