The Legal DEI Project

“Diversity, Equity, and Inclusion,” or “DEI,” is an umbrella term used to describe organizational efforts to treat all people fairly and remove barriers that tend to exclude people based on race, sex, disability or other key identity traits. The Trump Administration has intentionally distorted the term, labeling anything it opposes “DEI,” and then declaring it “illegal.” For example, the Trump Administration has issued a number of executive actions and orders: describing a wide array of lawful practices as “unmeritocratic and illegal DEI”; proclaiming that transgender individuals don’t exist; and refusing to recognize certain types of unlawful discrimination.  

This is a political, not a legal, move, designed to grab media headlines and signal quick action on the Administration’s policy priority: to target what it wrongly characterizes as “discrimination” against majority group members. Nondiscrimination is not a zero-sum game. Preventing discrimination against Black workers, for example, does not constitute discrimination against white workers. The Trump Administration is using an “anti-DEI” campaign to reorient more than sixty years of civil rights protections designed to ensure that all people, particularly those who have been historically excluded, are treated fairly at work. 

In fact, current federal law requires employers to actively prevent and correct discrimination and harassment, including against workers because of their sexual orientation or gender identity, and it sometimes prohibits policies and practices that have a disproportionate discriminatory effect.

Nothing the Trump Administration has done through executive orders or actions has changed–or has the power to change–existing obligations under federal law. Employers must continue to comply notwithstanding the current political rhetoric.

The term “Diversity, Equity, and Inclusion” or “DEI” has no legal meaning. It is a generic, umbrella term used to describe organizational efforts to treat all people fairly and include those who tend to be underrepresented due to, for example, race, sex, or ability status​​. While the concepts diversity, equity, and inclusion have been around for decades, the term DEI became popular after the Black Lives Matter and MeToo movements highlighted the pervasiveness of discrimination and inequality in modern America. Many companies during this time branded their ongoing, and in some cases expanded, efforts to support diverse workforces and reduce discrimination in work under the DEI, or DEIA/B (“A” for accessibility, or “B” for belonging) label. When it comes to employers’ legal obligations regarding discrimination, however, it’s the actions and sometimes inactions of employers that matter, not the overarching term used to describe them. 

The current anti-DEI effort is part of a longstanding fight that dates back at least to the passage of the landmark 1964 Civil Rights Act, including Title VII, the employment discrimination section of the Act. It is a fight ultimately not about whether equality or equity or diversity or inclusion are featured on websites or in HR handbooks, but rather about what employers will be required, and permitted, to do about discrimination.

No, “DEI” is not illegal, because it is a generic term for a concept. Employers generally cannot implement preferences, or limit opportunities, to employees based on race, sex, or other protected traits. To the extent that any DEI programs included such practices, those practices generally must be discontinued.

But it is legal for employers to have an interest in diversity and equal opportunity, and to take measures to advance that goal. This helps ensure compliance with nondiscrimination laws. Research also demonstrates that valuing workforce diversity and removing barriers to success can enhance productivity and innovation, increasing profitability. Treating workers fairly and without bias benefits all employees and employers. 

Employers may also—and in some cases must—collect voluntary data on demographics of applicants and employees, and they can consider that data in assessing their workplaces for barriers to equal opportunity. Employers cannot impose quotas, but they may take lawful steps to address any unfair imbalances they discover.

Companies that dismantle their nondiscrimination or diversity initiatives in response to the current Administration’s policy priorities run the risk of violating state and federal law. Without any efforts to protect against discrimination, biased employment decisions are likely to occur. In addition, current law requires employers to address discriminatory harassment and to provide reasonable accommodations for some needs of their workers.

Eliminating personnel and programs that ensure compliance with nondiscrimination laws puts employers at direct risk of employee lawsuits, exposing them to compensatory damages and injunctions as well as possible attorneys’ fees and punitive damages. Private suits brought by employees far outnumber those brought by the government. In the past five years, employees filed between 61,000 and 89,000 EEOC charges annually and filed thousands of cases in federal and state court. By comparison, the EEOC brought fewer than 150 cases each year.

Regulatory uncertainty is a fact of life for most businesses, and successful ones respond with careful thought and attention to legal nuance. The present moment should be no exception. 

Under federal law, employers cannot discriminate on the basis of race, color, religion, sex, national origin, disability, age, or veteran status. Sex discrimination includes discrimination based on pregnancy or related medical conditions and discrimination based on sexual orientation and gender identity. State laws often protect additional characteristics, such as marital status.  

Under these laws, it is not enough for employers to simply tell employees to treat everyone fairly or to discipline employees who engage in discriminatory or harassing behavior. Employers must also consider their own actions, including whether their HR decision-making systems, work cultures, and other features of their workplaces facilitate biased decisions or create barriers to equal opportunity. Failure to do so exposes employers to legal liability and deprives workers of the support and protection our nondiscrimination laws provide.  

Employers are also generally required to provide “reasonable accommodations” for workers’ disabilities, pregnancy, childbirth and related medical conditions, and religious beliefs and practices unless it is unduly burdensome to do so. Often requests for accommodations are handled by DEI offices. If employers dismantle those offices, they risk running afoul of the law if they fail to establish an alternative process to make sure that requests for accommodations are handled promptly and appropriately.  

Employers must also avoid use of employment practices that appear fair on their face but that have a disparate impact–meaning they disproportionately disadvantage people on the basis of race, sex, or other protected traits–unless the employer can show that the practice is “job related” and “consistent with business necessity.” This means employers may need to reassess selection processes, including AI-based screening tools, if they cause a disparate impact.  

And employers may not “retaliate” against employees who challenge or oppose workplace discrimination. This means that it can be illegal to penalize a worker who has complained about discrimination or harassment or who has taken steps to support or corroborate a coworker’s complaint.  

President Trump’s proclamations cannot single-handedly change the law, which is enacted through the legislative process by Congress and interpreted by the courts. 

Executive actions are directives to the federal government whose role is to enforce the law as it was enacted by Congress and interpreted by the courts. The Trump Administration’s recent actions may impact federal agency enforcement of existing law, but they are not law. 

As part of carrying out the Trump Administration’s policy priorities, the federal agency that enforces workplace nondiscrimination law–the Equal Employment Opportunity Commission (EEOC)–has recently issued documents to announce a new focus on and encourage questionable reporting of what the current EEOC views as “prohibited DEI.” These documents mischaracterize many lawful actions that employers can–and sometimes must–take as illegal. These documents are neither binding regulations nor formal guidance and, again, they lack the force of law. They do, however, indicate the current EEOC’s interest in chilling employers’ efforts to prevent discrimination against members of protected classes by characterizing them as “discrimination” against majority protected classes. For example, Andrea Lucas, named by President Trump as Acting Chair of the EEOC, sent a letter to 20 top law firms, demanding that they provide detailed information on their efforts to recruit diverse employees. Yet even this federal agency action lacked proper authority: the EEOC Chair cannot unilaterally demand documents without a formal Commissioner’s charge launching an investigation. While the EEOC’s current policy views matter to how the agency chooses to enforce nondiscrimination law, they are not law. 

Employment discrimination based on LGBTQ+ status is illegal. Five years ago, in a case called Bostock v. Clayton County, the Supreme Court interpreted the federal law prohibiting employment discrimination because of sex to include discrimination because of sexual orientation and transgender status. Many state laws explicitly protect gender identity and sexual orientation.  

President Trump has issued an executive order stating that the federal government will only recognize two sexes and that it does not agree that the concept of “sex” includes “gender identity.” The EEOC has since dropped cases it was pursuing on behalf of transgender employees. However, trans- and non-binary employees are still pursuing discrimination claims, often with the help of private attorneys.  

Neither the President nor the EEOC has the power to supersede the Supreme Court’s interpretation of statutory law. Employers may still be liable for discrimination on the basis of gender identity or sexual orientation, or for failing to address harassment on the basis of these characteristics. This can potentially include such things as not providing access to an appropriate or gender-neutral restroom or misgendering an employee.

The term “affirmative action,” like the term “DEI,” is often intentionally overused in ways that are misleading. Two years ago, in a case called Students for Fair Admissions (SFFA) v. Harvard, the Supreme Court held that explicitly and categorically considering a college applicant’s race as a positive criterion in the university admissions process violates the Equal Protection clause of the Constitution.  

Despite rhetoric from the Trump Administration, the SFFA v. Harvard decision does not apply to private employment matters. Employment decisions are covered by Title VII, not Title VI, of the Civil Rights Act of 1964, and the Equal Protection clause applies only to government employers. Moreover, the decision addressed the context of university admissions decisions only. In the employment context, the Supreme Court has interpreted Title VII to allow explicit and categorical consideration of protected traits under very limited circumstances. An employer considering the diversity of its workforce and its benefits to the business does not constitute unlawful “affirmative action” under Title VII or the Equal Protection clause.  

“Disparate impact” refers to a way of proving discrimination where a policy or practice appears neutral and yet results in discriminatory effects by race, sex, or other protected class. For instance, under current law, an employer cannot impose a physical fitness test or an English-language proficiency requirement that disproportionately disadvantages people based on a protected trait (for example, sex or national origin), unless the employer can show that the requirement is “job related” and “consistent with business necessity” as defined by caselaw. 

The Trump Administration issued an executive order that attempts to “eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.” This may have some effect in areas of law where disparate impact is not specified in statute, but this executive order has no effect on employment discrimination under Title VII of the Civil Rights of 1964. Over 50 years ago, in a case called Griggs v. Duke Power Company, the U.S. Supreme Court recognized that employees could prove discrimination using the disparate impact model of proof. In that case, Black employees successfully challenged their employer’s requirement that they have a high school diploma and certain test score to transfer to jobs in higher-paying departments, when neither was necessary for the jobs. Decades later, when Congress amended Title VII in the Civil Rights Act of 1991, it specifically wrote the disparate impact method of proof into the text of the statute, where it remains today.  

Employers have flexibility to consider what works best in their own workplaces. In doing so, they should also consider what research suggests works and does not. For example, studies have shown that some diversity or bias trainings may be insufficient and even harmful to a company’s nondiscrimination efforts if not integrated with other measures to ensure fairness and nondiscrimination. 

Some common measures that research suggests can be effective--and that are legal--include:

• adopting broad recruitment strategies to include applicants from historically under-represented groups;  

• assessing job descriptions and ideas of “merit” (including reliance on “fit”) to ensure that hiring criteria and other measurements for success match job responsibilities and needed skills; 

• structuring interview processes to reduce the risk that selection procedures are distorted by bias, for example, by providing consistent interview questions, rubrics, and time for careful deliberation; 

• adopting job-training programs that expand work-related interactions and skills; 

• building strong mentoring and support programs that are open to all employees; 

• publicizing opportunities for promotion so that all employees can consider opportunities for advancement;  

• providing quality, research-based training on nondiscrimination and harassment; 

• promptly and appropriately investigating workplace complaints not just as isolated incidents but as part of a broad examination of the need for organizational change; 

• assessing and adjusting physical and technological features of work, such as office layout and communication tools, to facilitate integration and reduce bias;  

• adopting paid sick day and paid family and medical leave policies that allow workers to address their own and family members’ health needs; 

• permitting remote work and flexible scheduling where feasible in response to workers’ requests, while making sure to foster inclusion across the full workplace, which includes remote work; 

• creating (or maintaining) offices or positions focused on expanding access and inclusion.