For additional details regarding Acting Chair Lucas’ recommendations, check out Robin Shea's blog post.

In response to Ms. Lucas’s document, several former EEOC officials issued a statement of their own titled, “Statement of Former Equal Employment Opportunity Commission (EEOC) Officials on Employer Diversity, Equity, and Inclusion Efforts.” The former officials issuing the statement are Charlotte Burrows (Commissioner, 2015-2025; Chair, 2021-2025); Chai Feldblum (Commissioner, 2010-2019); Karla Gilbride (General Counsel, 2023-2025); Christine Griffin (Commissioner, 2006-2009; Vice Chair, 2009); Stuart Ishimaru (Commissioner, 2003-2012; Acting Chair, 2009-2010); David Lopez (General Counsel, 2010-2016); Peggy Mastroianni (Legal Counsel, 2011-2017); Jocelyn Samuels (Commissioner, 2020-2025; Vice Chair, 2021-2025); Ellen Vargyas (Legal Counsel, 1994-2000); and Jenny Yang (Commissioner, 2013-2018; Vice Chair, 2014; Chair 2014-2017). All of the former officials are Democratic appointees.

The former officials say that Ms. Lucas’s document may chill efforts to provide equal employment opportunity. They note that, “[p]roperly constructed, such efforts are not discriminatory. To the contrary, they can help prevent and address the discrimination that continues to deny equal employment opportunities to qualified workers and applicants and prevents employers from utilizing the full talent of our communities.”

DEI initiatives and Title VII compliance

Acting Chair Lucas emphasizes that employment decisions based on protected characteristics such as race or sex are prohibited, even if motivated by an interest in promoting diversity. Her guidance cautions against using any race- or sex-based preferences, with limited exceptions.

The former EEOC officials agree that it is unlawful to make employment decisions based on protected characteristics. However, they note that employers may continue to lawfully pursue diversity goals by identifying systemic barriers to opportunity and making proactive, neutral efforts to promote equal access to employment opportunities.

Training on inclusion and anti-discrimination

Ms. Lucas notes that certain types of DEI-related training may, depending on content and delivery, give rise to claims of a hostile work environment if they are perceived as targeting or stereotyping employees based on protected characteristics.

The former officials posit that most workplace training, including DEI-related training, does not meet the legal threshold for unlawful harassment or creating a hostile work environment because courts generally require a showing of severe or pervasive conduct based on a protected characteristic, not mere discomfort with training content​.

Employee Resource Groups

Ms. Lucas cautions that limiting participation in ERGs or affinity groups to members of a specific protected class could raise concerns under Title VII’s prohibition against segregation.

The former officials agree that participation should not be limited but maintain that employers should not be discouraged from establishing voluntary ERGs. In the view of the former officials, ERGs can be lawful when participation is open to all employees on equal terms and when support for the groups is administered consistently across different employee communities​.

Lawful strategies to promote equal employment opportunity

Ms. Lucas’s document serves to caution employers on practices that could be deemed unlawful. In light of this, the former officials provide employers with guidance on practices that remain lawful and consistent with Title VII, including the following:

• Broadening recruitment efforts to reach underrepresented communities, such as expanding outreach to a variety of educational institutions.
• Reassessing job qualifications to ensure they do not unnecessarily screen out capable candidates.
• Voluntarily collecting and analyzing workforce demographic data to identify potential barriers to opportunity, with appropriate privacy safeguards​.

These measures are framed as compliance tools to support equal employment opportunity practices and organizational compliance. 

Five steps employers should consider

Given the focus on DEI initiatives by federal enforcement agencies, employers may benefit from the following strategies:

No. 1: Conduct a comprehensive review of DEI programs.

Evaluate existing DEI initiatives to ensure they align with current legal standards and agency guidance.​ Constangy has a checklist of various documents and materials that may implicate DEI initiatives, which should be reviewed.

No. 2: Emphasize inclusive and non-discriminatory practices.

Ensure that all programs and benefits, including ERGs, are open to all employees regardless of protected characteristics to avoid claims of exclusion or segregation.​

No. 3: Provide training focused on equal employment opportunity.

Regularly review training materials to confirm they promote awareness of equal employment opportunity obligations and promote respectful workplaces and legal compliance, without targeting or stereotyping.

No. 4: Stay informed about legal developments.

Monitor communications from the EEOC and other enforcement agencies to understand the agencies’ current positions. Seek legal guidance to assess potential risks or necessary program updates.

No. 5: Document decision-making processes.

Keep detailed records of the rationale behind DEI programs and any modifications made in response to legal guidance.​ Documentation can serve as evidence of good-faith efforts to comply with anti-discrimination laws if your practices are ever questioned.​

By proactively assessing and adjusting DEI initiatives in light of evolving EEOC guidance, employers can help to ensure their programs support organizational goals and remain legally compliant.