So given these varied responses, what guidance does exist? Based on recent comments by the acting EEOC chair Andrea Lucas, and complaints filed by America's First Legal (founded by Stephen Miller, currently the President's Chief of Staff), there may be some clarity around areas the administration may perceive as illegal or pursue as more problematic:

Diverse slate requirements for interviews or diversity hiring goals. Both of these have been challenged in various legal complaints. Diverse slate goals, such as the NFL's "Rooney Rule" (requiring a certain number of diverse candidates before a coach job is filled) could come under fire for creating illegal preference or opportunities. Diversity hiring goals are not quotas (which are already illegal), but put targets in place for diverse hiring and thus may face legal challenges as well, as they provide what the administration may feel is preference based on gender or ethnicity.
Professional development programs that target certain groups: training programs, mentorship programs or other programs that are designed to advance careers or skills for a particular minority or sex, may also be challenged. A recent Supreme Court decision, Muldrow vs. City of St. Louis, made it easier to challenge these programs in court.
Training programs or networking groups that focus on gender- or race-based issues may also face challenges if they result in what the administration feels are unfair opportunities or preferences.

While these are areas that may draw concern or legal challenge, there are still actions companies can take, which, if structured correctly, can still serve to eliminate unconscious bias, drive more fairness in selection programs, and still result in a broader more inclusive workplace environment:

Conduct audits on promotion processes, compensation outcomes, etc. to ensure there is no bias in place against gender, ethnicity, etc. Many companies do these today and these are practices that can likely be continued.
Create more standardized approaches to ensure fairness. Standardized interview questions, for example, are shown to eliminate bias, create a more fair and common comparison set for all candidates.
Root out selection, performance management or promotion criteria that include "culture fit" or other similar attributes, which could be creating unintended preferences in your human resources programs and policies.

While these are simple changes, they have been proven through research that they can create positive change, reduce performance or selection bias, and result in a more fair, inclusive and prosperous workplace.

Instant Insights /

Navigating DEI in today's environment

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