In January, the President issued executive orders specifically calling for the end of DEI programs in both the federal government and the private sector. While certain elements of this executive action have already been enjoined in federal court, the administration indicated it would be advancing efforts to find and take action against companies it believes are in non-compliance. That has caused many businesses to re-evaluate their programs, or cancel them outright, while the matter is further argued and decided. So how can companies navigate this uncertain moment? And what practical tips exist around what companies can and can’t do?

First, it’s important to understand a couple key points: equal employment opportunity laws (EEO) that prohibit discrimination based on race, color, religion, sex, and national origin have not changed. Additionally, the first amendment rights for companies to express their views (including those in support of DEI) have not changed either. At the same time, many companies are scrambling to determine what actions and policies within their companies will be viewed as illegal or illegal. The attorney general issued a letter on Feb. 5 directing the Justice Department to “investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs and activities in the workplace,” which has only further accelerated efforts at companies to scale back traditional DEI programs

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Some companies have already scaled back programs: Target removed diversity goals, mentorship programs and racial justice initiatives. Meta has removed its chief diversity officer and ended diversity hiring goals. Google also ended its employee diversity targets, noting as a federal contractor it is obligated to comply with the government’s decisions. Other companies are not changing their programs, including Costco and Apple – both of which turned away anti-DEI proposals at their annual meetings.

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.

Jesse Meschuk is a human capital advisor, and career and HR expert with more than 20 years of consulting and human resources experience.

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