02-18-2025
A New York Times article explored how experts and employers are viewing diversity initiatives and avoiding discrimination lawsuits against the backdrop of the administration’s anti-D.E.I. stance. There is a clear intent by the administration to root out any efforts that it considers “D.E.I.” Yet, employers also want to comply with Title VII’s prohibition on discrimination. The new EEOC chair has included “rooting out unlawful D.E.I.-motivated race and sex discrimination” as a priority. A recent DOJ memo revealed that the department plans to enforce the president’s executive order on D.E.I., posing a significant risk for businesses.
What is illegal “D.E.I.”? It is not obvious. A Vinson & Elkins partner said employers are in a “brave new world” and are “freaking out.” Standard practices, like mandatory training on avoiding bias and discrimination, help break down discriminatory barriers but may fall under the D.E.I. category. A Stony Brook sociologist told the NYT that these trainings were created to help employers address real challenges. The current political climate (including lawsuits by conservative groups) makes reducing an employer’s legal vulnerability under Title VII very difficult. A group of professors, diversity officers, and others are suing to block the D.E.I. executive order.
Employment lawyers have told their clients that fellowships, internships, and mentorships programs directed at protected classes could expose them to legal liability if they are exclusive. The same goes for employee resources groups. However, if these groups are open to everyone, they are more likely to pass scrutiny. If employers get rid of all diversity training, it could negatively impact them if an employee sues for discrimination. Employers are encouraged to assess changes by asking, “Will investors approve? Could consumers boycott? Will employees complain? Will talent look elsewhere for job opportunities?” Some want corporate executives to use the moment to evaluate which diversity initiatives make a difference and cut those just used for public relations.