Whenever a new president is elected, we employment lawyers write an article of some version of “What to Expect.” Many of my colleagues have written excellent articles on this topic, and the Trump administration has given us no shortage of things to discuss. To me, however, the most interesting issue is the fate of diversity, equity, and inclusion (DEI) programs under the Trump administration.
As discussed below, while the law itself may not have changed for private employers, the federal government’s enforcement priorities certainly have, and employers need to be aware that DEI programs will be an investigative and enforcement priority for the U.S. EEOC (Equal Employment Opportunity Commission) in the coming years.
Employers need to review current practices and policies for recruitment and hiring, but also in other areas such as internal promotions and other benefits and programs, to ensure that no one is treated differently because of his or her race or sex.
2023 U.S. Supreme Court Case Alters DEI Landscape
To get a complete picture of where we are now, you have to go back a couple of years to 2023, when the U.S. Supreme Court decided Students for Fair Admissions v. Harvard (the “SFFA decision”). Prior to the SFFA decision, universities had been allowed to use race as a factor in admissions. The SFFA decision found that the school’s use of race in the admissions process was unlawful.
In a concurring opinion, Justice Gorsuch made the point that discrimination under Title VI, which governs discrimination in education, very likely has the same meaning under Title VII, which governs private employment.
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The case set off a renewed push to eliminate DEI programs by private employers. Since 2023, we have seen 13 state attorneys general write a letter to the CEOs of the Fortune 100 companies warning them that discriminatory DEI policies would not be allowed. There have also been shareholder actions at large employers, such as Apple and Costco, asking these companies to cease their DEI efforts. Some have been successful, and some have met resistance. There have also been multiple lawsuits filed by white employees who allege discrimination in hiring and promotion under DEI initiatives.
It is also worth noting that in 2024, the U.S. Supreme Court eliminated the requirement of showing that discrimination caused “significant harm” to a plaintiff, which expanded the types of work actions that could form the basis of a discrimination claim beyond things like hiring, firing, and compensation.
Trump Takes Early Action on DEI
Which brings us to Pres. Donald Trump. Trump campaigned on a promise of eliminating it. In his first hours in office, he signed an executive order that broadly ended DEI in the federal government and directed federal agencies to investigate DEI programs that may violate the law.
Trump also appointed Andrea Lucas as the chair of the EEOC, who, in her initial statement, said, “Consistent with the president’s executive orders and priorities, my priorities will include rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending biological and binary reality of sex and related rights…and protecting workers from religious bias and harassment.”
So, have we all awakened to find ourselves in a completely new legal landscape changed by the stroke of Trump’s pen? No.
Trump’s executive order on DEI will not make DEI illegal for private employers. If you want guidance on the rules for making DEI compliant with federal law, look no further than Trump’s pick for EEOC chair. Lucas has repeatedly spoken about this issue, and what is and is not permissible. Here are some key points:
- For decades, it has been illegal to hire or fire an employee because of race, sex, and other protected categories. While some may have come to believe that “diversity” is a legitimate, nondiscriminatory reason to prefer one candidate over another, it is generally going to be illegal if a motivating factor for preferring one candidate over another is that candidate’s race, regardless of whether you say “diversity” or “race.”
- Race cannot be the tiebreaker. You cannot have a racial or sex-based quota or a diverse slate of candidates requirement.
- Trump’s executive order does not make DEI illegal for private employers. You just (as it has been for a long, long time) cannot discriminate because of race, sex, etc.
- There is nothing wrong with trying to remove barriers or to try to increase diversity in the pool of applicants you are considering in the hiring process. Going to an HCBU to try to encourage African American students to apply for jobs in your organization is fine.
- The prohibition on discrimination does not just apply to hiring and firing. You should also not restrict things like training programs, leadership development programs, and mentoring to employees of one race or sex.
- The fact that your actions may be good for business is not a defense if you are making race-based hiring or promotion decisions.
- Trump and Lucas have both said that cracking down on discriminatory DEI programs will be a priority.
- Under 42 U.S.C. § 1981, these same arguments (with regard to race) may apply to contractors.
DEI has been a regular part of the corporate world for years, and it seems that most employers, especially larger ones, have some sort of diversity policies and/or goals, supported by employees whose sole responsibility may be promoting diversity.
The bottom line is that you don’t need to scrap your DEI program, but you do probably need to be aware that the chances of it coming under scrutiny have increased.
So, as always, be prepared, be proactive, and be ready.
About the author:
Brent Siler is a member of the Adams and Reese Litigation Practice Group and Labor and Employment Team.