Whether an Employer is Actively Engaged in DEI, It’s Still Illegal for Them to Discriminate

DEI (Diversity, Equity, and Inclusion) has gotten a lot of press over the years and has become a lightning rod for love and criticism. The second Trump administration has made a point of attacking it (whatever they think DEI is), and it’s current, explicit federal policy to stamp it out wherever and whenever it can. Unless and until federal law changes, the (temporary or permanent) end of DEI does not green light illegal employment discrimination. DEI is not part of the law, so ending it doesn’t affect it.

What is DEI?

The Harvard Business School Online states DEI comprises of:

• Diversity: The presence and participation of those with different backgrounds and perspectives, including those from groups who traditionally have been underrepresented
• Equity: Getting equal access to opportunities and fair and impartial treatment
• Inclusion: A sense of belonging where all feel accepted, welcomed, and respected

DEI isn’t just a touchy-feely management fad. Studies have shown that DEI initiatives can benefit a company's bottom line. One study found that businesses with a diverse staff experience more than twice as much cash flow per employee.

DEI initiatives are “essential to fostering a positive work culture.” Exposure to diverse perspectives can improve the following:

• Employee morale
• Business ethics
• Creative problem-solving
• Innovation

Sounds pretty terrible, doesn’t it? Criticism of DEI initiatives from social conservatives includes that the “equity” part of the program involves shaming White employees for past discrimination they played no part in, and White employees may have a harder time getting jobs and promotions as employers seek a more “diverse” workforce.

Abandoning “DEI” Shouldn’t Result in Embracing Illegal Discrimination

Many standard corporate policies could be labelled as “DEI,” including the following:

• Auditing pay practices to determine if pay rates are fair and equitable
• Requiring diverse job candidate pools
• Ensuring that promotions are fairly awarded

They are also employer tools to help them show compliance with state and federal statutes outlawing workplace discrimination, according to Reuters. Assuming the data is positive, an employer sued by a job candidate or employee for discrimination would be disadvantaged without this information.

The Trump Administration and its executive orders can’t help an employer successfully sued for employment discrimination. DEI as a management approach was never factored into federal anti-discrimination law, so there’s no impact from an effort to remove it.

DEI policies became more common after nationwide protests in 2020 of police killings of unarmed Black Americans. Reverse discrimination claims, where those traditionally in positions of authority (predominantly White, male, heterosexuals) claimed their characteristics were used against them, became better known. But these cases have been filed for decades, long before “DEI” was uttered by a management consultant.

Reverse discrimination cases are far outnumbered by the traditional variety of these legal actions. Employers going out of their way to placate White men so they won’t sue them may end up ignoring or violating anti-discrimination laws. They risk finding themselves on the business end of lawsuits filed by everyone else.

The Downside to Backing Away from DEI? Evidence of More Tolerance of Discrimination

Other potential costs of an employer washing its hands of DEI efforts are discussed in a Bloomberg News article:

‘Companies’ retreats from such initiatives will reverse…progress and draw discrimination litigation in the future. Plaintiffs’ lawyers will look to use corporate decisions to abandon DEI efforts as evidence of bias and discriminatory intent. For example, executives questioning the value of DEI efforts—sentiments that could be revealed during discovery—can signal bias from which a jury can infer that an employment decision was made “because of” race, gender, or another protected trait.

Backing away from DEI can also be used as evidence in hostile work environment claims. Under Title VII, employers must demonstrate they exercise reasonable care to prevent and correct workplace harassment. Scaling back programs such as affinity groups, DEI task forces, or climate surveys can signal a failure to maintain effective preventive measures.

For instance, employee resource groups often provide spaces for underrepresented employees to voice concerns, fostering accountability and awareness of harassment policies. If these initiatives are cut, employees may lack the support or information they need to report harassment, which can show that the employer failed to create a safe work environment.’

Meta, the corporate entity owning Facebook, ended some of its DEI programs in January, according to Axios. The company’s CEO, Mark Zuckerberg, also stated that companies needed more “masculine energy” from their employees that month during a podcast. Both of these may be music to the ears of a lawyer representing a current or past employee claiming discrimination by Meta because she’s a female.

A path that may bend toward the politics of the Trump Administration could ultimately increase an employer’s liability risks. They shouldn’t count on DEI foes to start a collection to help pay their attorneys’ fees or verdicts against them.

Has Your Employer Discriminated Against You?

Do you have questions about illegal employment discrimination or believe your employer took action against you because of your characteristics? If so, we will listen to your facts, explain the law, and suggest right and reasonable approaches for relief.

Kingston Law Group provides compassionate counsel and tough advocacy. We are ready to help you, your loved ones, and friends. Call us at +1-609-683-7400 or contact us online to schedule a near-term initial consultation at a reduced hourly rate. Call us today. You’ll be glad you did.