Is DEI Illegal Now: Part II – Is The EEOC's Anti-DEI Messaging At Odds With Its Title VII Enforcement?

Recent statements from EEOC leadership have characterized certain corporate diversity, equity, and inclusion (DEI) practices as potentially "unlawful" under Title VII, prompting employers to question whether previously supported practices have become illegal overnight. However, while political rhetoric has shifted, the EEOC continues to litigate and conciliate traditional race and sex discrimination cases under Title VII, often resulting in substantial monetary settlements and multi-year compliance obligations. For private employers and federal contractors, the challenge is not choosing between DEI and compliance but recognizing that Title VII has always prohibited employment decisions based on protected classifications, regardless of direction. At the same time, business competitiveness depends on attracting, developing, and retaining top talent based on qualifications and merit. The key for employers in 2026 is to avoid reactionary policy rollbacks and instead align opportunity structures with Title VII's core requirement: employment decisions must be based on job-related criteria, not protected characteristics, while maintaining inclusive practices that expand access to the broadest qualified talent pool.

In late 2025 and early 2026, corporate legal departments, HR leaders, and federal contractors have been grappling with a new dynamic: the public stance of senior EEOC officials against certain DEI practices. In interviews and public statements, EEOC leadership has signaled that DEI initiatives which consider race, sex, or other protected categories may violate Title VII, potentially exposing employers to government investigation. Yet, at the same time, the EEOC continues to enforce Title VII against employers for traditional forms of discrimination involving race, sex, and harassment. This duality raises a fundamental question: Is the EEOC's messaging on DEI consistent with its enforcement actions?

The Shift in Rhetoric: DEI as "Unlawful"

In December 2025, EEOC Chair Andrea Lucas announced that the agency would intensify scrutiny of corporate DEI practices in 2026, stating that initiatives relying on protected characteristics could constitute "unlawful" discrimination under Title VII.[Reuters/Steptoe LLP, Jan. 14, 2026]¹ She emphasized that changing terminology from "DEI" to "Belonging" or "EO" would not shield underlying practices from enforcement scrutiny if they functioned as preferential treatment.

This messaging aligned with broader federal signals, including DOJ statements linking "illegal DEI" to False Claims Act theories for federal contractors, suggesting that contractors who certify nondiscrimination while maintaining preferential DEI programs may face FCA exposure.[Wall Street Journal/DOJ Reporting]²

Additionally, EEOC leadership used social media to encourage "reverse discrimination" charges by white male employees, amplifying the administration's perspective that some DEI programs unlawfully disadvantage certain demographic groups. [Reuters/Steptoe LLP]³

But Enforcement Reality Remains Grounded in Title VII

While rhetoric has shifted, the EEOC's enforcement docket reflects a different story. The agency continues to investigate, conciliate, and litigate traditional discrimination claims involving race, sex, harassment, and retaliation:

Race-Based Harassment – Boart Longyear
In 2025, Boart Longyear Company agreed to pay $177,500 to settle EEOC allegations that a Black employee experienced race-based harassment by supervisors and coworkers in Nevada, resolving claims under Title VII and requiring policy revisions, training, and reporting.[EEOC Press Release]⁴

Systemic Sex Discrimination – Glunt Industries
The EEOC secured a $2 million consent decree against Glunt Industries to resolve claims that the company denied production jobs to women, failed to provide restroom access, and retaliated against female employees, in violation of Title VII.[EEOC Press Release]⁵

In both cases, the underlying violations were not novel, they reflected traditional Title VII theories prohibiting disparate treatment, harassment, and retaliation.

Understanding the Apparent Contradiction

The confusion stems from conflating two very different concepts:

• DEI Programs (Lawful) = efforts to broaden access to opportunity, enhance recruitment, and create supportive environments.

• Preferential Treatment (Unlawful) = making employment decisions "in whole or in part" based on protected characteristics, whether favoring or disfavoring any group.

Title VII prohibits employment decisions based on protected characteristics for any race or sex, not just minority groups. [42 U.S.C. § 2000e-2(a)]⁶

The Business Competitiveness Dimension

Separate from legal compliance, employers face a commercial reality: successful organizations must attract, develop, and retain the most qualified talent to sustain growth and innovation. High-performing companies:

• Compete in tight labor markets

• Require diverse skillsets, not demographic quotas

• Benefit from inclusive pipelines that expand the qualified applicant pool

But critically, the competitive advantage comes from merit, not preference. Hiring and promotion decisions that rely on job-related competencies, skills, performance, and experience, rather than protected traits, are both:

1. Legally required under Title VII, and

1. Commercially advantageous

Thus, when implemented properly, inclusion efforts should expand access to qualified talent, not restrict it.

>Conclusion

The EEOC's anti-DEI messaging reflects a new enforcement interest, but Title VII itself has not changed: discrimination based on protected characteristics remains unlawful, regardless of direction. Employers should not abandon inclusion or compliance efforts, nor should they adopt demographic quotas. The defensible, strategic path forward is clear: build inclusive, merit-based talent systems that expand the qualified applicant pool while ensuring employment decisions remain neutral, job-related, and non-preferential.

Footnotes

1 Reuters interview with EEOC Chair Andrea Lucas; summarized via Steptoe LLP analysis, Jan. 14, 2026.

2 Wall Street Journal reporting on DOJ FCA investigations; referenced via Steptoe LLP analysis, Jan. 14, 2026.

3 Public social media statements by EEOC Chair; referenced via Steptoe LLP analysis, Jan. 14, 2026.

4 EEOC Press Release, Boart Longyear settlement, 2025.

5 EEOC Press Release, Glunt Industries consent decree, 2025.

6 Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a).

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