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Is Your ERG Program Legal? What the EEOC and DOJ Just Clarified About Identity-Based Programs

Think your ERG Program is safe? Not if it’s still using this language.

Author

Maceo Owens
March 24, 2025

Last week, the U.S. Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) issued new guidance about DEI-related discrimination in the workplace—and ERG programs are directly impacted.

Let’s break this down real quick:

  • The EEOC (among other things) enforces federal anti-discrimination laws in the private sector and investigates all discrimination claims.

  • The DOJ steps in to litigate cases involving state or local government employers or federal contractors.

  • Together, they enforce Title VII of the Civil Rights Act, which prohibits discrimination based on race, sex, and other protected characteristics.

If an employee believes they’ve experienced discrimination, they must first file a charge with the EEOC before they can sue.

And now? The EEOC and DOJ just made it clear:

Even well-meaning DEI and ERG programs can violate Title VII if they restrict access based on identity.

And just a heads up…

🛑 I’m not a lawyer. This is not legal advice. You should absolutely consult your internal legal counsel and/or a qualified employment attorney to review your ERG policies and practices.

That said…

📚 What They Released:

Here are the three new federal resources:

🧠 One Major Learning: Update Your Language.

This guidance doesn’t mean ERGs are illegal—it means your documentation, programming, and language must be inclusive, not exclusive.

Here are a few examples of phrases to retire and what to say instead:

Let’s be clear:

✅ Identity-centered ERGs are still allowed.

❌ Identity-restricted ERGs are not.

Here are some phrases to retire—and what to replace them with:

❌ “For Black employees only”

✅ Try: “This space centers Black employee experiences. Open to all.”

❌ “Only women of color can apply”

✅ Try: “This program explores the experiences of women of color. Anyone can join.”

❌ “LGBTQ+ ERG is for LGBTQ+ employees only”

✅ Try: “The LGBTQ+ ERG centers LGBTQ+ identities and experiences. Open to all who are interested.”

A quote from the Press Release that I think everyone should note:

“Far too many employers defend certain types of race or sex preferences as good, provided they are motivated by business interests in ‘diversity, equity, or inclusion.’ But no matter an employer’s motive, there is no ‘good,’ or even acceptable, race or sex discrimination,” said EEOC Acting Chair Andrea Lucas. “In the words of Justice Clarence Thomas in his concurrence in Students for Fair Admissions, ‘two discriminatory wrongs cannot make a right.’”

And like I’ve said before:

You can’t fight exclusionary companies with exclusionary ERGs—even if it’s well-intended.

🛠 Need help reviewing your ERG’s structure or language?

I created this ERG Compliance Audit Tool (Google Doc) to help you pressure-test your current documentation and programming. Start there (PDF below).

ERG Compliance + Language Shift Toolkit.pdf158.26 KB • PDF File

A lot is changing in the ERG space right now—and honestly, if you’re going to make updates, this is the time to do it all at once. Rip the bandage off, get your structure right, and move forward without having to keep circling back.

Beyond just language, this moment is a chance to look at the bigger picture of your ERG program, including:

If you’ve been meaning to clean this up, now’s the moment… and I’m more than happy to support with the process. The ERG Movement helps companies design ERG Programs that are compliant, strategic, and built for long-term success—without the chaos. 🔗 Book time with me here to future-proof your ERG Program.

The ERG Homegirl ✌🏿

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