Has DEI changed all that much? Perhaps not.

The recent executive order, titled "Ending Illegal Discrimination and Restoring Merit-Based Opportunity," [1] emphasizes the importance of adhering to longstanding federal civil rights laws that protect individuals from discrimination based on race, color, religion, sex, or national origin. Prohibited conduct includes illegal discrimination and preferences as well as workforce staffing based on protected characteristics. For many employers, this executive order requires significant changes to their employment programs, especially goals and metrics that were narrowly focused on specific demographic groups.

Moving forward, and especially in light of the current regulatory environment, it is important that organizations regularly review existing policies and programs to ensure objectives and language are focused on the value diversity brings to the organization, and not the achievement of particular employment objectives that focus on the placement of underutilized or underrepresented demographic groups. Consistent implementation and administration of diversity, equity and inclusion (DEI) policies and programs are critical for success and compliance. “DEI” is common shorthand for a varied set of initiatives broadly designed to counter pervasive biases and stereotypes, and to cultivate more diverse, equitable and inclusive institutions.

The Equal Employment Opportunity Commission (“EEOC”), along with the Department of Justice, recently released two technical assistance documents to provide employers with some more detailed guidance as they look to navigate DEI policies in today’s climate. We recognize there will be certain types of programs and practices more likely to face scrutiny due to the potential of unlawful discrimination. Generally speaking, employers should be mindful of the following:

• Do not limit employee access to, or exclusion from, training (including leadership development programs), mentoring or workplace networking events, based upon certain demographics or protected characteristics.
• Do not take employment actions motivated by protected characteristics. These actions might include hiring, firing, transfer, promotion, demotion, compensation adjustments or access to fringe benefits.
• Design fair and equitable selection criteria for internships, including summer programs.
• Do not limit membership of employee resource groups (ERGs) to individuals with certain protected characteristics. Membership should be extended to all employees.
• Base selection criteria for interviews on the experience and qualifications necessary to successfully perform the responsibilities of the position and not upon protected characteristics. This includes the placement or exclusion of an individual from an applicant pool or candidate slate.