/>iCan you still have DEI (diversity, equity, and inclusion) programs? How about affirmative action plans? The Supreme Court’s June 2023 decision in Students for Fair Admissions v. Harvard garnered national attention in holding that Harvard’s admissions program, which used race as a factor in admissions, violated the Equal Protection Clause of the 14th Amendment. Since then, major private corporations have made headlines with their decisions to scale back certain DEI initiatives. Other private companies, such as Costco and Apple, remain unwavering in their commitment to DEI. While not without legal risk, companies that have found DEI initiatives to be helpful to their business and culture can continue with their programs.
State Attorneys General Weigh In
In a recent letter, 13 Democratic attorney generals (from California, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New York, Rhode Island, and Vermont) urged one retail giant to reconsider its scale back of DEI programs. The AGs’ letter reminded the retail giant that the Fair Admissions decision is a narrow ruling and does not prohibit private corporations from implementing DEI initiatives. The letter went on to remind the company that DEI initiatives are not only encouraged and beneficial but are in some cases necessary to comply with certain states’ anti-discrimination laws.
The New Administration Weighs In
President Trump’s recent executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” has made the future of DEI even more perilous. The executive order rescinded Executive Order 11246, a 1965 order that imposed affirmative action requirements on federal contractors. Additionally, the federal government has placed DEI employees on paid leave and ordered the termination of DEI activities within federal agencies. The recent executive order goes on to demand that the attorney general submit “recommendations for enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.”
Avoiding Legal Risks in Continued DEI Efforts
If you want to continue DEI efforts, do so thoughtfully and recognize the risks. The recent executive orders emphasize the idea of restoring merit to employment decisions. Therefore, your DEI measures should ensure that programs continue to be merit-based and are designed to provide equal access to opportunities for all applicants and employees. The executive order does not define the specific DEI programs or activities it deems to be illegal, however policies such as quotas, hiring preferences, or hiring goals are likely more susceptible to claims of discrimination. You should review any of your existing company policies and initiatives to ensure they comply with state and federal anti-discrimination laws, as well as recent executive actions.
In the aftermath of the Fair Admissions decision, the EEOC stated “[i]t remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.” Due to recent executive actions, we may get additional guidance from the EEOC on the topic of DEI.
Before you make a decision to change an existing workplace DEI initiative or to implement a new initiative, you should consult with your legal counsel to ensure compliance with state and federal anti-discrimination laws. Be on the lookout for developments in this space, as the president’s recent executive actions will likely face legal challenges so the landscape could change.
