Joan C. Williams, Laura J. Maechtlen and Jamie Dolkas, Harvard Business Review (HBR); How to Assess the New Legal Risks of Your DEI Policies
"With a series of executive orders, the Trump administration has put a target on corporate diversity, equity, and inclusion policies. As of this writing, key portions have been enjoined by a federal court. Yet the administration has signaled its intention to make noncompliance so punitive that many companies still are scrambling to review their DEI programs and practices for EO compliance.
In the rush, two key facts are getting lost in the shuffle. The first is that core federal and state equal employment opportunity (EEO) laws have not changed. Trump’s executive orders did end federal contractor affirmative action programs, and Trump can direct federal employees to take certain actions against “illegal” DEI policies and programs. But what is “illegal” under core EEO laws today hasn’t changed from before President Trump took office. This highlights that what companies are concerned about is not entirely legal risk, but regulatory and litigation risk.
The second core fact is that companies have a First Amendment right to express their views on DEI. This right was affirmed in the spring of 2024 by a conservative-leaning panel of judges of the Eleventh Circuit, which struck down Florida’s prohibiting companies from expressing certain ideas in DEI trainings.
But with Attorney General Pam Bondi’s February 5th memo directing the Justice Department’s Civil Rights Division “to investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector,” leaders are understandably and urgently looking for guidance on how to pursue their lawful, fair, and business-driven DEI initiatives."
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