Will DEI Really DIE…or Just Go Quiet

By now, things seem to be settling out, but as long as litigation is involved, nothing is ever really final. That is the case with DEI, where the resistance to executive orders ending it still persists. EEOC currently lacks a quorum, but it continues to actively enforce the original regulations that it was supposed to cover. Not covered are such programs as “illegal DEI” and other actions covered employers may take that are based upon any protected characteristics like race, gender, etc. Discrimination is still illegal, and that includes reverse discrimination. This development affects all employers subject to EEOC jurisdiction. Contractors to the federal government are also subject to the requirements overseen by the OFCCP. 

So, what is “illegal DEI”? As noted above, it involves basing employment decisions/moves/etc., primarily on protected characteristics. A possible alternative is “Quiet DEI” – the legal means of implementing inclusivity, fairness and respect in a workplace by ensuring that all employees have equal access to opportunities for learning, training, advancement, etc. In addition, employers have to take into consideration any relevant state or local laws that pertain to EEO, etc. In the event of a seeming conflict, employers are advised to consult their legal counsel. 

That said, a survey of employers by the Littler Mendelson law firm indicated that over half of employers surveyed do not plan to make significant reductions to their DEI programs. 

Remember, EEO is still the law, which may help to explain the above survey results. Title VII, ADEA ADA, EPA (Equal Pay Act) and others including state and local laws are still in force, but the provisions of EO11246 (i.e., the AAP) are no longer in play. It is important to remember that discrimination of any kind based on protected characteristics is illegal. 

Also note that some states still have their own requirements of this type.