Diversity, Equity & Inclusion (DEI) efforts, and the term itself, have become increasingly scrutinized and subjected to legal challenges by both government and private actors, making an understanding of the current DEI climate and applicable law critical to organizations advancing efforts to support DEI initiatives. DEI focuses on the elimination of barriers to opportunities for all to achieve goals of fair treatment, which should have the effect of expanding the demographics of an organization. The current White House administration, with the stated purpose of providing for fair treatment and equal protection of all people, has rescinded or limited certain previous executive orders and promulgated policies against “illegal” DEI but has not defined what “illegal DEI” includes. As a result, many universities and businesses that rely on federal funding have curtailed their efforts out of fear that the administration may consider their organization’s initiatives “illegal.” However, you can have compliant DEI initiatives referenced on your website that do not violate the law and are not contrary to the current administration’s objective to provide fair treatment and equal protection for all.
It is not illegal for universities and businesses to prioritize increasing diversity. However, “diversity” should be construed to be inclusive of, and offer opportunities to, all races, genders, and backgrounds rather than interpreted myopically. Neither the rescission of executive orders from previous administrations nor the issuance of new executive orders by the current administration gives employers and businesses the right to discriminate. Discrimination against anyone based on an immutable characteristic (such as race) is illegal. Only Congress can repeal current federal law. None of the current civil rights laws have been touched, including, without limitation, those passed following the Civil War and during the Civil Rights Movement of the 1960’s (e.g., Section 1981 of the Civil Rights Act of 1866 and Title VII of the Civil Rights Act of 1964, both of which remain the applicable law today). So, consult your attorney and continue to abide by the law.
Key Considerations for Current State of the Law
- Executive Order 14151 (Ending Radical and Wasteful Government DEI Programs and Preferencing) (“EO 14151”). On January 20, 2025, the current administration published EO 14151, which rescinded EO 13985, a Biden-era executive order titled “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” EO 13985 required federal agencies and departments to implement “Equity Action Plans” to identify and remove barriers to equal participation in and access to federal benefits and services, barriers to benefiting from federal agency procurement and contracting programs, and other government programs. EO 14151 terminates the requirement for federal agencies to prepare and submit these plans. EO 14151 also requires federal agencies to terminate all “equity-related” grants or contracts that were intended to assist the agencies in meeting their DEI objectives and all DEI or DEIA performance requirements for employees, contractors, or grantees. Certain aspects of EO 14151 are subject to current litigation, which should be monitored closely. You can read here to review highlights of some of the ongoing litigation.
- Executive Order 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity) (“EO 14173”). On January 21, 2025, the current administration published EO 14173, which rescinds EO 11246 (a 60-year-old civil rights era directive signed by President Lyndon B. Johnson). EO 11246 (and its subsequent amendments through additional executive orders) required federal contractors and subcontractors to refrain from discrimination in hiring, promotion, compensation, and employment practices based on race, color, religion, sex, sexual orientation, gender identity, and national origin. EO 11246 also required those contractors to engage in affirmative action practices for women and minorities. EO 14173 eliminates all affirmative action obligations with respect to women and minorities, and it requires federal contractors and subcontractors “to certify” that they do “not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” EO 14173 currently is in ongoing litigation, which should be followed closely. Employers should note that Title VII of the Civil Rights Act of 1964 is still the law and should ensure that they are complying with the equal employment opportunity requirements therein. You can read here for a more detailed breakdown of EO 14173.
- The current administration has stated that it will continue to follow the law. Federal law, such as Title VII, prohibits (unless a clear illustration of historic disparate treatment can be shown) “affirmative action” and, by extension, DEI programs that provide any advantage to any person based on race, gender, or other immutable characteristic. The guidelines published by the Equal Employment Opportunity Commission state that discrimination based on race, color, religion, sex, or national origin violates Title VII (as stated in the Supreme Court case McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 12 EPD (1976)). For more information on how your company can lawfully promote equal opportunity considerations on your website, always consult with a labor & employment attorney.
Key Considerations: Applicable/Current Law
- Section 1981 of the Civil Rights Act of 1866. All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, to be parties, to give evidence, and to receive the same full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. The application of the law protects all persons from discrimination in contracting based on race.
- Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex (including pregnancy), and national origin. It gives a private right of action to employees to sue their employers for violating the law. Title VII is broader than Section 1981 (referenced above) and remains the principal employment anti-discrimination law in the United States.
- The concept of quotas (i.e., identifying a number of persons of a specific race for employment or enrollment) has been explicitly forbidden under federal law for some time. The concept associating quotas with illegal conduct was further reemphasized within EO 14173. Therefore, no DEI initiative should encourage or be premised upon quotas.
The following recommendations are worthy of consideration:
Mission Objectives
- Focus on the elimination of barriers and creating opportunities for all. “Inclusion” is a keystone of DEI, and when you eliminate barriers, you are far more likely to include everyone — whether in a decision-making role or when taking steps to advance organizational priorities.
- When focusing on diversity, emphasize seeking diversity of viewpoints on your website, concerning the primary subject area. The point of DEI is not simply to have a broad sector of races and ethnicities but to have different views and perspectives, which often emanate from differences between individuals (whether that be due to environment or otherwise — e.g., urban versus rural, first-generation college student, or economically disadvantaged). You also should express how your DEI efforts remove barriers to entry and barriers to success for your target audience.
- DEI efforts and initiatives should be focused on ensuring the organization’s systems, policies, and processes are intentional, equitable, fair, and structured in a manner to minimize bias. A systems-focused approach is one that helps everyone but also goes a long way to close gaps and remove barriers for the most marginalized. In this manner, the focus is on the macro and not on specific programs, which, if not made accessible to all, can run afoul of non-discrimination law.
Application Process
- If you have an application for admissions, grants, or scholarships on your website, create a prompt that asks the applicant to explain how they plan to effect [insert your diversity criteria] change in the U.S. and/or how they may have felt subjected to discriminatory practices in relation to the purpose of the application. Do not seek information on a particular applicant’s immutable characteristics or premise a selection or award on this information.
- Require application candidates to discuss their individual, historical circumstances and how they have affected their current situation rather than have your company, university, or organization make assumptions associated with historical circumstances based on immutable characteristics. This step works to your organization’s advantage because it provides a deeper look into an applicant’s individual circumstance and makes no assumption based on immutable characteristics, which is the cornerstone of illegal discrimination.
Use of Language
- Consider how the name of your organization can help or hinder your outreach. For example, affinity groups should always be open to all. However, many affinity groups utilize an immutable characteristic in their name (e.g., Black Law Students Affinity Group). Adding a reminder on multiple pages of your website and application materials that the affinity group is open to all could be helpful in reducing legal risk. Stating that a program is being presented by “[Diversity X Organization]” is legal, whereas stating that a program is “only” for Black or White people is not. When naming a new organization, consider the intended demographic that you are trying to reach when selecting the name of the organization and how that may impact your legal risks.
- Remember, diversity of ideas and approaches is more fulsome where anyone can be a member of an organization, without regard to an immutable characteristic (e.g., race or ethnicity).
- Note on your website that the application process is “open to all,” including by emphasizing this fact and by noting the process is an equal opportunity for all persons irrespective of race, religion, gender, etc.
- For some compliance initiatives, DEI has been used as an umbrella term to capture compliance obligations monitored by human resources departments. For example, under the Americans with Disabilities Act, employers and places of public accommodation are obligated to ensure persons with disabilities can access buildings and resources, and barriers and impairments to successfully working or accessing public locations are eliminated. Some businesses began to group these actions together and label them holistically as DEI. If you feel that the term “DEI” has become too incendiary, then consider language for the policy that is more descriptive, such as “improving success” or “removing barriers” and the like.
Finally, it goes without saying: Follow the law. If you have questions on what is legal or problematic, consult a lawyer, and remember that the laws in your jurisdiction and new executive orders are constantly changing.
If you have any questions about DEI compliance, contact the authors or your Foley & Lardner attorney.
