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The article was featured in the April 21, 2025, issue of Arkansas Business, authored by WLJ Labor & Employment Team Leader Jane Kim.
On March 19, the Equal Employment Opportunity Commission (EEOC) issued guidance detailing the agency’s view on discrimination related to diversity, equity and inclusion (DEI) programs and practices in the workplace: “What You Should Know About DEI-Related Discrimination at Work and What to Do If You Experience Discrimination Related to DEI at Work.” The guidance provides some clarity to those employers struggling to understand what constitutes “illegal DEI” under President Donald Trump’s recent DEI-focused executive orders, which are being challenged in court.
The EEOC guidance explains that any “employment action motivated — in whole or in part — by an employee’s race, sex, or another protected characteristic” may be unlawful under Title VII and provides the following examples of unlawful DEI-related workplace discrimination:
► The use of quotas and other “balancing” efforts.
► Disparate treatment in various aspects of employment, including the selection of interviewees and hiring and firing, promoting and demoting, or compensating employees; offering fringe benefits; and providing access to training, mentoring or sponsorship programs, or fellowships.
► Limiting membership in workplace groups, such as affinity groups, or separating employees into groups based on protected traits when administering DEI or other training, even if the content is the same.
► Unlawful harassment during DEI training — that is, harassment that results in an adverse change to a term, condition or privilege of employment, or is so frequent or severe that a reasonable person would consider it intimidating, hostile or abusive.
► Retaliation for objecting to or opposing employment discrimination related to DEI, participating in employer or EEOC investigations or filing an EEOC charge. “Reasonable opposition to a DEI training may constitute protected activity” that would prohibit employer retaliation.
The guidance also emphasizes the EEOC’s long-standing position that “there is no such thing as ‘reverse’ discrimination; there is only discrimination.” According to the EEOC, Title VII’s protections “apply equally” to all employees and applicants, and not just those who belong to a minority group or are diverse, historically under-represented or women. The guidance cautions that an employer’s business interest in “diversity” (including client or customer preference) does not justify making employment decisions motivated by a protected characteristic.
While the long-term future of Trump’s DEI-related executive orders is uncertain at this point, employers should regularly review and update their DEI programs and policies to ensure compliance with Title VII.
Public employers in Arkansas should also take proactive steps to align their DEI practices with the new state law prohibiting employment discrimination or “preferential treatment” on the basis of race, sex, color, ethnicity or national origin. Act 116 (formerly Senate Bill 3) was signed into law on Feb. 18 and will likely take effect in July.