(This column originally appeared in the Inquirer)
In January President Donald Trump issued Executive Order 14173, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” which created a new set of rules regarding diversity, equity, and inclusion (DEI) in the workplace.
The Equal Employment Opportunity Commission (EEOC) and the Department of Justice followed up with a joint statement for employees titled “What to Do If You Experience Discrimination Related to DEI at Work” as well as a technical assistance document called “What You Should Know About DEI-Related Discrimination at Work.”
The executive order, and the additional guidance, clarified that Title VII of the Civil Rights Act of 1964 “prohibits disparate treatment in the terms, conditions, and privileges of employment, including: hiring, promotion, compensation, exclusion from training, exclusion from fellowships, firing, demotion, fringe benefits, exclusion from mentoring or sponsorship programs, and the selection for interviews, including placement on candidate slates.”
Regardless, some of the guidance remains unclear, and cases opposing the regulations are making their way through the court system. For many employers who were previously implementing DEI policies, the new rules are creating confusion and concern. If you’re one of those employers, here are a few things to consider.
Get a legal review
If your company has a DEI policy or has programs that may be considered discriminatory under these new rules, it’s important to have legal counsel review them.
Alison Stevens, a senior director of human resources services at HR and payroll processing firm Paychex, suggests getting a comprehensive audit of all internal and external DEI policies and programs, including any content that exists on both your internal and external websites and systems.
“An audit can help companies tailor objectives, identify areas requiring immediate action, and develop a comprehensive strategy that can help mitigate legal and reputational risks,” she said.
Michele Douglass, a partner at New Jersey law firm Burnham Douglass, said any policies should align with existing EEOC anti-harassment and antidiscrimination rules.
“Employers should be working with employment counsel to ensure that initiatives are grounded in legitimate business interests, like expanding talent pools, improving cultural competency, or reducing turnover,” she said.
Rethink how you approach ‘DEI’
“Because the term DEI has become such a flashpoint, most employers are moving away from using this phrase in their employee policies,” said attorney Virginia Hardwick, a partner at law firm Hardwick Benfer LLC in Doylestown.
“It’s important to ensure that your programs that may have previously been offered to only those in protected categories be available for all,” Hardwick added. ”Quotas and numeric goals for recruitment and advancement are an invitation for scrutiny or even a lawsuit and should be avoided.”
Stevens is telling clients that their business practices should reflect their workplace culture and include equitable access to all opportunities.
“Businesses should communicate efforts as sustainable business practices instead of preferential treatment,” she said.
Douglass is telling her clients that they can “reframe without retreating.”
“Think in terms of eliminating disparate impact, not enforcing numerical diversity targets,” she said.
Emphasize documentation and data
To ensure compliance, Stevens also advises employers to maintain comprehensive documentation related to posting jobs, as well as documenting all steps in the recruiting and hiring process.
“You may also consider training or retraining employees and managers on procedures to ensure that your business practices are compliant,” she said.
Douglass said DEI goals “can and should still be pursued,” but employers must shift from quota-based or explicitly race-conscious approaches to “data-driven, objective strategies that focus on removing barriers and expanding opportunity.”
She recommends using analytics to identify pay disparities, promotion gaps, or attrition trends.
“Address these as systemic business issues, not identity-based preferences. This approach remains fully defensible and necessary,” she said.
Emphasize merit
It’s now more important than ever to judge prospective and current employees primarily on their qualifications.
Claude Schoenberg, an independent labor attorney based in Bala Cynwyd, contends that current DEI practices apply criteria that are inconsistent with the mandates of employment law.
“Employees — both current and prospective — must be judged based on their merit and not based on immutable characteristics such as ethnicity or gender or national origin,” Schoenberg said. “Such characteristics can be discussed in how those characteristics helped to shape an applicant’s merit, but the best strategy for employers is to hire based on merit for available positions.”
Hardwick added that new executive orders “should not be construed as an open invitation to favor white men in hiring or promotion.”
“Employers who value the strength brought by a diverse workforce should look holistically at the range of experience and skills brought by job candidates,” Hardwick added.
Use common sense
Most experts agree that now is not the time to panic.
A February Justice Department memo reminded employers that the recent regulations do not prohibit educational, cultural, or historical observances — such as Black History Month, International Holocaust Remembrance Day, or similar events — that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.
