The new landscape of EEO, affirmative action and DEI

Published: March 27, 2025 | by Emily Scace, JD, Senior Legal Editor at Brightmine

Two months into the second Trump administration, employment discrimination law may never look the same. From ending most affirmative action requirements for federal contractors to cracking down on diversity, equity and inclusion (DEI) initiatives, the administration has aimed its actions squarely at upending equal employment opportunity (EEO) norms.

Amid this new landscape, many employers are uncertain about the current state of the law, wondering what has and has not changed, and looking for clarity about how to respond.

EEO: Still the law

Federal laws that apply to most employers prohibit employment discrimination based on various protected characteristics. The major federal antidiscrimination laws include:

All of these laws are still in force, and employers’ compliance obligations under them have not changed.

What has changed are the enforcement postures and legal interpretations under the current leadership of the Equal Employment Opportunity Commission (EEOC). For example, the EEOC has radically changed its position on gender identity discrimination and harassment, reversing its earlier stance on issues including bathroom access, names and pronouns. The agency has also signaled increased receptiveness to claims of so-called reverse discrimination – discrimination against individuals in a majority group. Recent statements have warned employers about national origin discrimination against American workers and “unlawful DEI-motivated race and sex discrimination.”

But these shifts in messaging from EEOC leadership do not alter employers’ duty to provide a workplace free from discrimination and harassment. Employers should not change course, but should continue to prioritize equal opportunity and a foster culture of respect for all.

Affirmative Action: The end of an era

Federal employment discrimination laws are written broadly, and they generally do not specify how employers should go about preventing and eliminating unlawful discrimination.

By contrast, federal contractors have had to follow detailed antidiscrimination requirements since 1965. As a condition of receiving federal money, employers needed to implement a slate of actions, from recordkeeping to written plans to pay equity measures. These requirements stemmed from Executive Order (EO) 11246, which required covered contractors to take affirmative action with regard to race, color, religion and national origin. (Sex, sexual orientation and gender identity were added later.)

The Office of Federal Contract Compliance Programs (OFCCP), the federal agency responsible for overseeing compliance, regularly conducted audits of affirmative action programs, and employers that fell short could face the loss of their contracts.

But with the stroke of a pen, President Trump upended this long-standing regime. On January 21, EO 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, revoked EO 11246. The OFCCP was directed to immediately stop holding contractors responsible for compliance with affirmative action requirements based on race, color, sex, sexual orientation, religion and national origin. (Affirmative requirements for disability and protected veteran status remain in effect.)

Federal contractors may continue to comply with the revoked requirements for 90 days from the date of the order – until April 21, 2025. Some states and localities have their own affirmative action requirements for contractors, which remain in effect.

DEI: A shifting landscape

The same executive order that eliminated most affirmative action requirements contains a series of provisions targeting DEI programs. Federal agencies are directed to investigate publicly traded corporations, large nonprofit corporations and other organizations for so-called “illegal DEI and DEIA policies” and programs. Federal contractors will be required to certify that they do not operate “any programs promoting DEI that violate any applicable federal anti-discrimination laws.”

A new technical assistance document sheds some light on what the EEOC considers to be “illegal DEI.” According to the guidance, a DEI initiative may be unlawful under Title VII of the Civil Rights Act of 1964 if it “involves an employer…taking an employment action motivated — in whole or in part — by race, sex, or another protected characteristic.” An employee only needs to show some employment-related injury or harm to have a potential discrimination claim, the guidance states.

The prohibition against employment actions motivated by race, sex or another protected characteristic is nothing new. But the interpretation of Title VII’s basic command as barring many employer DEI programs represents a significant shift.

So, should employers abandon DEI?

Not so fast. If an employer’s DEI strategy involves quotas or bases employment decisions on race, sex or another protected characteristic, it was already illegal. But many initiatives, such as recruiting from diverse sources, ensuring accessibility and improving pay equity are good ways to mitigate the risk of discrimination claims.

Certain types of programs are likely to receive more scrutiny. The EEOC cautions that the following DEI-related initiatives, among others, could constitute unlawful discrimination if based on a protected characteristic:

• Access to or exclusion from training (including leadership development programs), mentoring, sponsorship or workplace networking
• Selection for internships, including fellowships or summer associate programs
• Limiting membership in employee resource groups (ERGs) and similar affinity groups to individuals with certain protected characteristics
• Selection for interviews, including placement or exclusion from a candidate slate or pool

Employers wondering how to proceed with their DEI initiatives should seek legal counsel. Much depends on the specifics of an employer’s programs and policies. But the bottom line seems to be that DEI activities should aim to include rather than exclude and open opportunities to all rather than limit some opportunities to certain groups.