The legal ground continues to shift for diversity, equity and inclusion programs, driven in no small part by an openly hostile White House. Few moments sum up the modern DEI landscape better than President Donald Trump’s claim during February’s State of the Union that his administration had “ended DEI.”
But corporate DEI programs are very much alive, attorneys at Epstein Becker Green said during a virtual event on Thursday, even if employers have made significant changes to the programs’ language, content and underlying policies. And while federal authorities now claim that some DEI initiatives are discriminatory, organizations largely meant well by adopting them, said Pete Steinmeyer, member of the firm at EBG.
“People did not implement these policies and procedures with the intent of being unfair to anybody,” Steinmeyer said during the event. “To the contrary, they were intended to lift people up and extend a helping hand.”
The law has changed to some extent in recent years, he added, perhaps best exemplified by the U.S. Supreme Court’s collegiate admissions program decision and subsequent developments associated with it.
That’s led companies to go back to the drawing board, said Lauri Rasnick, member of the firm at EBG. Some scrubbed DEI-related language from their websites. Others uncoupled executive compensation and DEI goals or eliminated diverse slate requirements in their hiring processes. Still others disbanded internal DEI councils and committees.
However, many forms of DEI programs live on and — with some tweaks — employers can reduce the likelihood that they will face litigation related to their DEI efforts, Rasnick said.
1. Open up employee resource groups and affinity groups
Employee resource groups and affinity groups are generally still permitted under employment laws unless they are improperly structured, according to Rasnick. Namely, participation and membership should not be restricted to employees on the basis of protected characteristics like gender or race.
Instead, the groups should be open to employees regardless of background, Rasnick said, and they should not provide members with preferential access to training, promotions, leadership pipelines or career development opportunities that are not broadly available to individuals outside of the group.
As an extra step, HR might consider reframing the charters of such groups to focus on professional development, mentorship and similar concepts rather than advocacy or preferential treatment for any particular identity, she continued.
2. Mind your use of demographic data
Tracking workforce demographics via data collection is permissible and is in some cases a legal requirement, as is this case for compliance with the U.S. Equal Employment Opportunity Commission’s EEO-1 data collection. But Rasnick cautioned employers to note how they use any collected data.
In addition to decoupling demographic measurements or quotas from compensation plans or promotion benchmarks, employers also may need to consider how they think about the data’s use in other contexts, like pay equity.
Pay equity analysis is generally a solidly legal practice, but employers should avoid framing their pay equity efforts as intended to correct disparities for any particular demographic group rather than disparities at large, Rasnick said. That analysis can also be conducted under attorney-client privilege as further legal protection, she noted.
“Focus on the desire to eliminate discrimination against any group and have equal treatment for all rather than only focusing on specific groups,” Rasnick said.
3. Reframe your DEI-related training
Unconscious bias training and similar programs come with a significant risk under the Trump administration, Rasnick said, and federal regulators have directly targeted them. Meanwhile, opposition to certain training programs can constitute protected activity. By extension, employees who object may have a retaliation claim if they suffer adverse consequences.
Employers may consider focusing their training on concepts such antiharassment, antidiscrimination and respectful workplace conduct, Rasnick said. These subjects constitute best practices and are also legally required in many jurisdictions.
Simultaneously, HR might want to shift away from training components that deal with systemic or group-level concepts, which Rasnick said can provide fodder for reverse discrimination lawsuits. She added that employers should avoid any training that suggests any group of employees has a particular bias or inherent bias based on their race, sex or other protected characteristics.
“If you end up deciding that you want to have unconscious bias training or more general diversity training, you might want to think about having that on a voluntary basis,” Rasnick said.
Leah Brownlee Taylor, member of the firm, said EBG attorneys have counseled at least one client against using training themed around the creation of safe spaces, which cut against the idea that internal workplace groups should be open to all. “It may be a noble idea and a noble intention, but there’s real liability risk in having or facilitating groups that exclude individuals,” Taylor said.
4. Make development opportunities broadly available
Whether employers offer internship, mentorship, sponsorship or other career development programs, the criteria for selecting participants should be merit-based and the programs themselves open to any interested individuals, Rasnick said.
She added that employers should avoid any eligibility criteria related to demographics. Even limitations based on facially neutral criteria such as “underrepresented talent” or individuals who are first generation citizens can be legally problematic, Rasnick said, if they are found to be proxies for obtaining people of certain demographic groups for the program.
“If you want to limit it to high-potential employees, early-career employees [or] employees in specific business units, all of that is completely fine,” Rasnick said. “Make it very clear as to what is the criteria and what is being used to determine who is accepted for these programs.”
5. Cast broader nets for job candidates, avoid ‘diverse slates’
Diverse slate hiring policies are risky under current federal guidance, Rasnick said, and the U.S. Department of Justice has explicitly prohibited employers receiving federal funds from using diverse slate mandates.
Instead, HR may seek to focus on sourcing strategies that cast a broader net without mandating that the employer meet particular demographic goals, she said. This could also mean revisiting questions asked in interviews to ensure they are objective and standardized.
Employers could even use interview scorecards to ensure interview questions are streamlined in this way, Rasnick noted; “You may end up with more objective interviews, which could lead ultimately to better patterns in the choices that are made.”
6. Conduct privileged audits regularly
Employers are highly encouraged to audit their DEI programs, said Steinmeyer, who added that he has done so with a lot of clients in the past year.
DEI audits can be conducted under attorney-client privilege, Rasnick said, and should be done on a regular basis so as to be on top of potentially problematic components that the employer may have missed previously.
“To me, it’s not the kind of thing that you do once and put it away in your cabinet and never go through it again,” Rasnick said. “That should be a living process.”