Article

Has DEI changed all that much? Perhaps not.

May 29, 2025 · Authored by Deanna Kempinski

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.

As organizations continue their work regarding cultural diversity, they should maintain focus on inclusivity and the creation of opportunities open to all, to reduce the risk of workplace programs and activities being perceived as discriminatory.

Below are steps to help manage DEI effectively while complying with this order:

Review and revise DEI policies

• Make sure DEI policies do not include illegal preferences or mandates based on race, sex, or any other protected characteristic.
• Emphasize merit-based hiring and promotion practices that prioritize individual qualifications, skills, and achievements.

Promote equal opportunity

• Create fair and unbiased recruitment practices that provide equal opportunities for all candidates.
• Design educational training programs that focus on preventing discrimination and promoting a culture of respect and inclusion.

Monitor and evaluate initiatives

• Conduct regular internal audits of your DEI initiatives to ensure they comply with the executive order and civil-rights laws.
• Create different channels for employees to report concerns or provide feedback on your organization’s DEI practices. These channels could include options for online or in-person reporting, an employee engagement or pulse survey, focus groups, etc.

Stay legally compliant

• Attend webinars or seminars and subscribe to multiple resources to stay informed of changes to federal and state laws regarding discrimination and DEI.
• When in doubt, work with legal professionals to examine potential implications for your business and ensure your DEI programs are compliant with the latest regulations.

Foster an inclusive culture

• Develop policies that support all employees, such as flexible working arrangements and anti-discrimination measures.
• Encourage the formation of employee resource groups that support various demographics within your workforce while making sure to extend an invitation to all employees to participate.

Organizations must take thoughtful and comprehensive steps to incorporate DEI into their culture, business operations and the communities they serve. Policies and programs should be created with company values in mind to support and reinforce the importance of a diverse and inclusive culture. As you move forward, remember the following:

• Mind the message
• If there’s a need to communicate a change, consider a broad set of stakeholders across your organization
• Aim to be consistent in your messaging and how your DEI efforts are ever-evolving, non-discriminatory, tied to the business and offer cross-cutting benefits for all

By focusing on the strategies above, employers can create a workplace that rewards performance, values diversity, promotes equity and ensures inclusion, while also adhering to legal and regulatory requirements.

For more information on this topic or to learn how we can help, connect with us.