It's not the first time that the EEOC has indicated it will focus on enforcing unlawful DEI, but what makes up that sort of discrimination has been undefined until now, said Andrew Scroggins, a labor and employment lawyer at Seyfarth Shaw in Chicago.

"What we saw in the early announcements was that the EEOC intended to direct its enforcement at unlawful DEI. They left undefined what it meant to be unlawful. And so this document begins to give some definition around what that term means for employers. It's up to them now to look at the programs that they have in place to make sure that they remain within these bounds," Scroggins said.

The EEOC memos are based on a series of executive orders which are being challenged in court, and the five-member EEOC board has three vacancies, and therefore no quorum, Scroggins said. But that doesn't change how the DEI memos should be read, he said.

"There's a lot swirling around [the EEOC]. I don't believe that that swirl impacts these documents. It is within the chair's authority to issue documents of this type. They're not controlling," Scroggins said.

The documents are prompting employers to conduct a new round of reviews of their programs and initiatives, said Nonnie L. Shivers, an employment lawyer at Ogletree Deakins in Phoenix. Clients are asking if the latest communications define unlawful DEI, but that term remains undefined, Shivers said. The latest communications don't change the law, but give an indication of the EEOC's current priorities and should be regarded as "technical assistance" rather than guidance, she said.

Shivers said both documents include extensive discussion of employee training. The "What You Should Know" memo makes statements about hostile work environments being created by DEI training that she feels "diverged from the law." A hostile work environment has to be "severe and pervasive," and she questions "whether DEI training could really create that."

Related: DEI pendulum stays put: Few companies alter policies, study shows

Nearly every employer provides training on equal employment opportunity issues, harassment and discrimination, and many states require such training, Shivers said. Some of that training doesn't align with the current state of federal law, as interpreted by the EEOC, she said. And the memos invite people to look at what training they are receiving and pursue legal claims, she said.

"Employers would be well advised to review their training, preferably in a privileged manner, because might doesn't make right. Just because you got the training from a third party that every other employer in the U.S. likely uses, that doesn't mean that it may not run afoul of what the EEOC says is, quote, unquote unlawful, DEI-related training contributing to the environment," Shivers said.

Shivers noted that a footnote in the "What You Should Know" memo illustrates that another major concern of the EEOC under Lucas is self-identification data. Many employers collect demographic data about the race of job applicants, she said, but a footnote in the memo suggests that the EEOC considers "diverse slate" policies, which dictate that a candidate pool be diverse, are unlawful.

"If you ask for pre-employment data about race, if you elicit race demographics from applicants before they are employees, then it is presumed you were using that as a basis for decision making, and that that would be unlawful in Title VII. "Employers should look at every single line of this guidance to understand the potential risk that programs that have largely been lawful if not entirely lawful, might bring because the devil's in the details," Shivers said.

The changes and ambiguity in the law are creating a "trying time" for employers, Shivers said. Even after receiving the EEOC's technical assistance, "there are more questions than answers," she said.

"It is wildly burdensome for employers who largely, if not entirely, want to be compliant, but also need to recruit the best and brightest and have programs, initiatives and offerings that develop people, and so the fear factor is high," Shivers said. "We want to do the right thing, but we are not sure what that looks like, and it is changing, every week. The ongoing nature of this, trying to play whack-a-mole, is very difficult," Shivers said.