On March 19, 2025, the Chair of the Equal Employment Opportunity Commission (EEOC), in conjunction with the Department of Justice, issued two “technical assistance” documents—encouraging complainants to file complaints of discrimination based on being subjected to Diversity, Equity and Inclusion (DEI) programs, which the documents referred to as “DEI-Related Discrimination.”
Neither the EEOC Chair nor the Attorney General have the power to unilaterally change underlying EEO law. The primary EEO discrimination statutes enforced by the EEOC are grounded in statute and so cannot be modified without action by Congress. The EEOC has also issued extensive regulations and guidance documents concerning the EEO statutes. The Attorney General does not have direct authority to void EEOC regulations, as EEOC’s authority to promulgate rules in this area is grounded in statute. See 29 U.S.C. §§ 633a(b), 791(f); 42 U.S.C. §§ 2000e-16(b), 12116. As the EEOC presently lacks quorum, it cannot amend its regulations except in the case of “[p]urely ministerial changes to regulations that are compelled by statute, such as mandatory annual adjustment of civil penalties,” and that authority is delegated to the EEOC Legal Counsel (or acting legal counsel), not the Chair. Further, court deference to changes in disparate impact regulations and guidance (some of which go back many years) is unclear, given that EEOC regulations no longer receive Chevron deference and instead only receive the same lesser degree of deference (referred to as Skidmore deference) that historically applied to EEOC guidance documents and manuals, and a court’s decision to apply Skidmore deference to a given agency policy depends in part on its “consistency with earlier and later pronouncements.” See Loper Bright Enterprises v. Raimondo, 144 S.Ct. 2244, 2262-2263 (2024); Federal Express Corp. v. Holowecki, 552 U.S. 389, 128 S.Ct. 1147, 1154, 1155, 1156-1157 (2008); Skidmore v. Swift & Co., 323 U.S. 124, 140 (1944).
Given this content, in essence the ‘technical assistance’ documents proposed a new potential theory or way of framing a discrimination complaint under preexisting EEO statutes (specifically, as a form of a race discrimination claim under Title VII), rather than claiming to create a new body of law from whole cloth. Historically, there has not been much existing court precedent on DEI programs or issues specifically using the “DEI” terminology, resulting in the guidance documents at times citing to EEOC court filings in ongoing litigation (which have no precedential value) rather than citing to decisions by a court or similar tribunal. The formulation cited in the ‘technical assistance’ documents does not track the historical framework under Title VII in certain respects, although certain other elements do track preexisting Title VII race discrimination law. In the context of race discrimination claims, Title VII is not designed to solely protect racial minorities and has long permitted non-minority employees to raise race discrimination claims (a form of claim sometimes referred to as a “reverse discrimination” claim). Indeed, a case concerning pleading standards for such cases (Ames v. Ohio Department of Youth Services, No. 23-1039) is awaiting decision at the Supreme Court at the time of publication of this blog entry. However, the ‘technical assistance’ documents limited discussion of “affirmative action” issues in this context to a brief mention in a footnote. Title VII, related Supreme Court precedent and EEOC regulations also explicitly permit use of “affirmative action” programs in certain circumstances. See, e.g., 42 U.S.C. § 2000e-17; 29 C.F.R. Part 1608; Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616 (1987); United Steelworkers of America v. Weber, 443 U.S. 193 (1979); see generally EEOC Compliance Manual, Ch. 15 “Race and Color Discrimination,” §VI.C. In discussing affirmative action programs in its enforcement guidance, the EEOC notes that the federal agencies are required by statute “to maintain an affirmative program of equal employment opportunity for all such employees and applicants for employment.” See EEOC Compliance Manual, Ch. 15, § VI.C and fn. 109 (citing 42 U.S.C. § 2000e-16(b)(1); see also EEOC Management Directive 715 (MD-715). It should be noted that affirmative action is a concept distinct from the colloquial concept of a ‘diversity program,’ and is designed to deal more narrowly “to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity,” as opposed to diversity efforts motivated by other “operational needs.” See EEOC Compliance Manual, Ch. 15, § VI.C.
While it remains to be seen whether or not the courts will accept the proposed new “DEI-related discrimination” framing, preexisting EEO law does provide some delineation on what sorts of DEI-related activities may be found to be lawful versus unlawful under Title VII. Employers making personnel decisions or disparately harassing employees based on the employees’ race violate Title VII, save for one of the recognized narrow exceptions to the law (for example, personnel decisions made under an affirmative action program meeting the requirements of law). Employers taking actions to “limit, segregate, or classify […] employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect [the individual’s] status as an employee” on the basis of race also violate the law. See 42 U.S.C. § 2000e-2(a)(2). Actions which violate these restrictions violate Title VII, irrespective of whether DEI issues were implicated in the relevant situation.
If you are a civilian federal employee and wish to seek advice regarding a possible discrimination claim, consider contacting Gilbert Employment Law, to request an initial consultation.