‘Illegal DEI’ Explained: 12 Warnings in New EEOC Guidance

The term “illegal DEI” has been a hot topic in HR since President Trump took office and issued several executive orders that aim to dismantle diversity, equity and inclusion (DEI) initiatives in both the public and private sectors. 

As a reminder, here are our complete breakdowns of the two main DEI executive orders:

• Trump Targets DEI Hiring, Promoting: How It Can Affect Private Employers, and
• Trump Dismantles DEI Programs: What It Means for HR Pros.

Many critics of the orders have pointed out that they fail to define what constitutes “illegal DEI,” leaving the concept vague and unclear – making compliance efforts all the more challenging.

The burning question on HR’s mind: What exactly is “illegal DEI” anyway?

EEOC Explains ‘Illegal DEI’ 

The EEOC has released a technical assistance document to answer that question. 

A DEI “initiative, policy, program or practice may be unlawful if it involves an employer or other covered entity taking an employment action motivated—in whole or in part—by race, sex, or another protected characteristic,” according to the EEOC.

Let’s break that down. 

First, any employment decision – things like hiring, firing, promotions and transfers – can be illegal under Title VII if it is motivated by an employee’s protected class.

And second, the phrase “in whole or in part” is important here: It means an employment action is unlawful under Title VII if race, gender or another protected characteristic played any role in the employer’s decision – even if other factors were also considered. 

Discrimination does not have to be the sole reason (the exclusive factor) or the determining reason (the “but-for” cause) for the action to be illegal, the EEOC explained. As long as a protected characteristic influenced the employer’s decision in any way, it may still constitute a violation of Title VII. 

12 Red Flags to Watch 

The EEOC clarified that Title VII prohibits discrimination – including DEI-related discrimination – in the following areas: 

1. Hiring – employers cannot select a candidate based on race, gender or other protected class.
2. Firing – employers cannot terminate a worker’s employment based on a protected class. 
3. Promotion – employers may not offer or provide advancement opportunities based on an employee’s protected class rather than merit or business need.
4. Demotion – employers may not reduce an employee’s rank, job title or responsibilities based on race, gender or other protected characteristics.
5. Compensation – employers may not pay employees differently based on race, sex or other characteristics.
6. Fringe benefits – employers must ensure equal access to fringe benefits and cannot restrict benefits based on protected classes.
7. Training and development – protected classes cannot be a factor in which employees receive training and development opportunities.
8. Mentoring and networking – protected classes cannot affect mentorships and networking opportunities, including informal workplace networks.
9. Internships – Title VII protections apply to internships and fellowships, including unpaid positions. As a result, employers cannot provide or deny opportunities based on protected characteristics rather than through a merit-based system.
10. Recruiting – screening and culling candidates cannot be based on protected classes.
11. Job duties and work assignments – employers may not assign job duties or work assignments based on protected characteristics.
12. Limiting, segregating or classifying – employers are prohibited from limiting, segregating or classifying employees or applicants based on protected classes in a way that impacts their employment status or denies them opportunities. Importantly, this restriction extends to employer-sponsored activities, including those that take place on company time, use company facilities or receive official or unofficial support – such as Employee Resource Groups (ERGs), Business Resource Groups (BRGs) and other affinity groups to specific protected categories.

Next Steps for HR

HR teams must balance DEI initiatives with compliance to avoid legal risks. These steps can help ensure policies, practices and training align with EEOC guidelines while supporting workplace inclusion.

Conduct a Policy Audit

A thorough policy audit can identify gaps and outdated practices so that HR and company leaders can make updates to improve company culture and mitigate risks.

When conducting DEI policy audits, be mindful of language that could come across as stereotypical or exclusionary, advised Stephen Paskoff, a former EEOC attorney and founder of Employment Learning Innovations, Inc. (ELI), in a recent conversation with HRMorning.

“Diversity and DEI programs must adhere to the law. And in instances where they don’t and/or create divisive conditions, intentionally or otherwise, they need to be replaced,” he said.

For more insights from Paskoff, check out his book, CIVILITY Rules! A New Business Approach to Boosting Results and Cutting Risks.

Consider a Shift to MEI

With many HR leaders exploring ways to keep the core idea behind their DEI programs while reducing legal risks amid the current uncertainty, it might be time to consider a shift in strategy. Exploring the options to do that can be challenging – which is why they often turn to experts for guidance.  

Tessa West, a psychology professor at NYU, has spent 20 years researching DEI and workplace communication while Jo McRell, an HR consultant specializing in the employee experience, brings nearly two decades of experience leading DEI and corporate communications.

Together, they offer a comprehensive perspective on how HR pros can balance traditional DEI initiatives with MEI – or merit, excellence and intelligence.

They previously shared with HRMorning that some companies are shifting to the MEI mindset. They outlined the reasons for this shift as well as the advantages and drawbacks of an MEI approach.

For more of their insights, check out Job Therapy: Finding Work That Works For You by West and Making Work Work for You by McRell.

Provide Training

To mitigate legal risks amid the DEI uncertainty, HR should implement ongoing training for employees – particularly managers and hiring teams – on EEOC-compliant practices. Training should cover:

• The distinction between lawful and unlawful DEI practices under Title VII
• Best practices for fostering workplace inclusion while ensuring compliance
• Identifying and addressing potential discrimination risks in hiring, promotions, and workplace policies, and
• Strategies for aligning diversity initiatives with business objectives and legal requirements.