Discrimination is illegal. Still. The laws have not changed. Diversity, Equity and Inclusion (DEI) programs are not illegal. Preferences and discrimination are illegal–same as it ever was. Why are organizations throwing out the baby with the bath water? Confusion.
On January 21, 2025, an executive order instructed federal officials to investigate “illegal” DEI programs–those that “constitute illegal discrimination or preferences.” The order identified the federal government, major corporations, financial institutions, large airlines, law enforcement agencies and institutions of higher learning as areas of concern and possible adopters of “dangerous” DEI programs. As a result of the order, Northeastern “adjusted” and renamed its DEI program this week, fearing a federal investigation and possible cuts in funding. That quick action may have Northeastern back on its heels as it seeks to comply with the law and be an inclusive university.
WHAT SHOULD YOU DO? Keep calm and carry on comes to mind. Make no mistake, this is a sea change from prior administrations. Of course, employers should follow the law, and federal employers should take steps to adjust their affirmative action programs in light of the executive order if needed. Remember, the federal laws DEI programs are built to address must still be followed. The executive order uses the term DEI in a broad and imprecise way that likely has nothing to do with the DEI program you have implemented – and if you are engaged in illegal discriminatory or preferential hiring practices, you should stop that even without this executive order. Political attacks on DEI generally do not mean your program is illegal or needs to go away (federal contractors notwithstanding).
REMEMBER STATE LAW: Do not eliminate programs that are working in anticipation of how DEI may or may not be viewed. The executive order calls for regulatory guidance, rather than supplying it – guessing at what may or may not be considered unlawful DEI under this still forthcoming guidance is likely going to be unproductive. Let’s not forget that while the federal government goes one way, states are likely going to go the other way. State anti-discrimination laws, particularly in states like Massachusetts, are not going to disappear by executive fiat. it might be reasonable to expect states to engage in more vigorous enforcement if the EEOC goes quiet.
RETAIN & REVIEW: DEI programs work in routing out bias to get to decisions based on merit. This order may make dropping DEI seem convenient, but that choice may increase the risk of discrimination and litigation if your personnel decisions no longer consider unconscious bias and disparate impacts. Look over your policies and programs or we can do that for you. Make sure your DEI policy does not prioritize race or sex over merit or aptitude. Before you abandon a tool designed to quell discrimination, take a breath. And contact us.
QUESTIONS? We can help.