Federal Investigations Impacting Workplace DEI Policies

I spoke with Scripps News about Trump's recent executive orders relating to DEI. I am already seeing a lot of fear and confusion in the private sector about the impact of these orders, so here are a few points that I hope provide some clarity: 1. Trump's executive orders are just that—executive orders. They are not laws passed by Congress. The "Dismantle DEI Act" has not become law, nor has the entire Project 2025 agenda. The executive orders are limited in scope and it is important to read their text closely to avoid over-complying: https://lnkd.in/ghjsXi_s. 2. The order most relevant to the private sector is the executive order on "ending illegal discrimination." This order revokes Executive Order 11246 (which required equal opportunity and nondiscrimination in government contracting), and directs the Office of Federal Contract Compliance to cease holding contractors responsible for taking "affirmative action." It also instructs the Attorney General to submit recommendations for how to "encourage the private sector to end illegal discrimination and preferences," such as through civil compliance investigations and litigation. 3. Trump has also revoked some of Biden's executive orders, including the Biden order that revoked Trump's 2020 ban on certain forms of DEI training by federal contractors. The 2020 order was successfully challenged in court and subject to a nationwide preliminary injunction that was issued in December 2020. 4. The other anti-DEI executive orders that Trump has issued on "ending radical and wasteful government DEI programs" and on "gender ideology" are mostly targeted at the federal government itself and do not require private-sector organizations to dismantle their own DEI programs. My main takeaway from these orders is that this is exactly the administration I expected it to be. We always knew that Trump would seek to destroy DEI from day one, and would use agency enforcement powers to target pro-DEI organizations. Andrea Lucas—the newly appointed Acting Chair of the EEOC—underscored this point yesterday when she announced that she would prioritize "rooting out unlawful DEI-motivated race and sex discrimination." Every organization with DEI programs should engage in a careful self-audit of their DEI activities in consultation with legal counsel to avoid being targeted by the new administration. But even after the executive orders of yesterday and the day before, the vast majority of DEI work remains completely legal. https://lnkd.in/ga89MczU

In the wake of the recent executive orders targeting DEIA initiatives within federal organizations and beyond, it’s clear that the current administration is setting the stage for broader attacks on inclusion efforts. From the establishment of a “hotline” for reporting DEI language to the appointment of DEI critics to key leadership roles, these actions are not just a government matter—they are a signal of what’s to come for private businesses. As I’ve said before, it’s going to get worse before it gets better. However, instead of retreating, we must act now. The playbook being deployed isn’t new, and it’s more important than ever to double down on creating cultures of belonging and environments where all voices are valued and heard. Here are six actionable steps leaders can take to safeguard and strengthen their commitment to building inclusive workplaces: 1. Embed DEI Into Core Business Strategy Treat DEI as integral to your business strategy, not a separate initiative. Align DEI initiatives with organizational objectives, and tie them to measurable outcomes like employee retention, innovation, and customer satisfaction. Pro Tip - Ensure Merit, Excellence & Intelligence (MEI) is highlighted. 2. Invest in Psychological Safety Ensure your workplace fosters open communication where employees feel safe to express themselves without fear of retaliation. This foundation of trust enables innovation and builds stronger, more cohesive teams. 3. Be Transparent and Data-Driven Use metrics to assess the current state of your culture and workforce. Share findings transparently with employees and leadership. Pairing data with storytelling humanizes the numbers and helps make the business case for DEI. 4. Strengthen Leadership Equip leaders with the cultural competency and tools they need to champion inclusion authentically. Empower them to drive change at every level of the organization, making them visible advocates for a culture of belonging. 5. Collaborate Across Sectors Join forces with advocacy groups, industry leaders, and community organizations to share resources, amplify impact, and stand united in advancing inclusion. This collective approach can strengthen resilience against external pressures. 6. Listen, Learn, and Adapt Create regular opportunities to listen to employees and communities impacted by your decisions. Use their feedback to refine and adapt your DEI strategies to remain relevant and effective. While the current climate might be challenging, this is also an opportunity to reaffirm your commitment to creating workplaces where everyone feels valued and supported. Proactive leadership in the face of adversity not only protects your organization but also positions it for success as workforce and market demographics continue to evolve. Rise to meet the challenge, stay the course, and collaborate to create a workplace where belonging thrives. Together, we can ensure our workplaces are resilient and inclusive moving forward.

A lot of people are reacting to the recent EEOC outreach asking white men to report “DEI-related discrimination.” The reactions range from panic to celebration to confusion. Let’s slow this down and be precise. First, what the EEOC is doing. The EEOC is not changing the law. Title VII has not been amended. Protected classes have not been redefined. What has changed is tone and emphasis. The agency’s leadership is publicly inviting complaints framed as “reverse discrimination,” specifically tied to DEI efforts. That matters. Civil rights enforcement has traditionally been driven by data, patterns, and evidence of systemic exclusion. This move flips that sequence. It elevates anecdote before analysis and signals heightened scrutiny of equity initiatives without any showing that such scrutiny is necessary. And that brings us to the missing piece. There is no credible data showing widespread discrimination against white men caused by DEI programs. If such a pattern existed, the EEOC already has the intake data to see it. Charges are tracked. Outcomes are tracked. Trends are tracked. A special call for stories is not evidence-based enforcement. It is record-building. Now the impact. Employers are understandably nervous. Many will feel pressure to “balance” or “neutralize” their DEI efforts to avoid claims. That’s where the real risk lives. Preparing for alleged reverse discrimination claims does not require abandoning equity. It does not require disadvantaging women, people of color, or other protected classes. And it certainly does not justify rolling back lawful practices that address documented disparities. Overcorrection is exposure. Don’t do it. A misguided scramble to protect white men in the absence of evidence can itself create liability. Overcorrection is not compliance. Erasing or weakening protections for historically excluded groups is not risk management. It is legally unsound and operationally reckless. Here’s the grounded takeaway for employers and boards: Stay anchored to evidence. Know the difference between equal opportunity and equal outcomes. Document the business and legal rationale for your policies. Ensure DEI efforts are lawful, targeted, and tied to real disparities. Do not let fear drive you into abandoning protections that still very much exist under the law. Civil rights enforcement is being rhetorically reframed. That does not mean the underlying law has disappeared. But it does mean leaders need to be disciplined, not reactive. Equity grounded in data and law is still defensible. Panic grounded in politics is not. If you’re navigating this moment and want a clear, legally grounded way to think through risk, compliance, and leadership decisions, this is exactly the kind of work I do.

"The Department of Justice's Civil Rights Division will investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector." That's the key sentence from a Feb. 5, 2025, memo that Attorney General Pam Bondi sent to all DOJ employees. What does it mean? No one really knows. What we do know is that diversity, equity, inclusion, and accessibility are top priorities for this administration. The key question is how the administration defines "illegal." Here's what we can infer so far: 🛑 Quotas and Hiring Preferences – These are unequivocally illegal and will likely face the highest scrutiny. They have been unlawful since 1964, and Trump's DEI opposition hasn't changed the legal landscape. ⚠️ Pay Equity Programs – As long as employees with similar skills receive comparable pay for similar work, there shouldn't be an issue. However, the DOJ may exploit gray areas if it wants to make an example of an employer for allegedly overpaying female or Black employees. ⚠️ Affinity and Resource Groups – Likely still legal, provided they don't exclude participants based on a protected class (which they shouldn't anyway). ⚠️ Anti-Harassment Training – The legal obligation to maintain a workplace free from harassment based on protected characteristics likely outweighs any DOJ scrutiny. However, organizations should review training materials carefully given the heightened attention. ✅ Educational, Cultural, and Historical Observances (e.g., Black History Month, International Holocaust Remembrance Day) – Likely permissible. The DOJ memo explicitly states that such celebrations are acceptable as long as they promote awareness, recognize historical contributions, and celebrate diversity without exclusion or discrimination. ✅ Disability Accommodations – Still required by law. Employers must provide reasonable accommodations to enable disabled workers to perform essential job functions. Employer's here's my advice. (*Disclaimer: LinkedIn posts are not legal advice.) Take a breath—don't panic—but pay close attention to what's happening. The anti-discrimination narrative has shifted: once focused on protecting marginalized groups from discrimination, it has flipped to focusing on discrimination against cisgender white men. While it's unclear how this will play out in practice, now is the time for employers to proactively audit their workplace EEO policies. And if the DOJ comes knocking, don’t forget to call your employment lawyer.

For several weeks, employers have been hearing about the term "illegal DEI." But what did "illegal DEI" actually mean—especially to the EEOC, the federal discrimination watchdog? Until recently, that was anyone's guess. That changed yesterday when the EEOC issued guidance clarifying when DEI initiatives might cross the line into unlawful discrimination under Title VII of the Civil Rights Act of 1964. Here’s what employers need to know. Under Title VII, a DEI initiative, policy, program, or practice may be unlawful if it involves an employment action motivated—in whole or in part—by race, sex, or another protected characteristic. This means that any employment decision, such as hiring, firing, promotion, demotion, compensation, or access to training and mentorship, that is influenced by protected characteristics could be considered discriminatory. Below are some example of DEI-related employment decisions that would violate Title VII if based on race, sex, or other protected characteristics—is prohibited under Title VII. ⚙️Hiring and Firing ⚙️Promotion and Demotion ⚙️Compensation and Benefits ⚙️Training and Mentorship ⚙️Work Assignments ⚙️Internship and Fellowship Opportunities ⚙️Performance Evaluations ⚙️Disciplinary Actions I'll give you an example of when DEI becomes discrimination. Imagine a company implements a mentorship program exclusively for women and people of color to promote workplace diversity. While the intent is positive, excluding white male employees from participation could constitute unlawful discrimination under Title VII. Here's another's one. Suppose an employer implements a hiring preference for underrepresented groups that automatically excludes equally qualified candidates from other demographics, this could also be unlawful disparate treatment. Even setting quotas or reserving positions for specific demographic groups—rather than ensuring a fair and inclusive selection process—risks violating federal anti-discrimination laws. Here a few tips: 👀Focus on Equal Treatment: Employment decisions should be based on merit and qualifications, not on race, sex, or any other protected characteristic. 🎨Design Inclusive Programs: DEI programs should be open to all employees rather than limiting opportunities to certain identity groups. 🤝Foster Inclusive Collaboration Encourage voluntary participation in mentorship programs open to all employees, ensuring access is based on interest and professional development goals rather than identity. Create networking and leadership opportunities that bring together diverse perspectives without requiring employees to participate based on protected characteristics. DEI initiatives play a critical role in fostering an inclusive workplace, but intent does not override the law. To stay compliant with Title VII, businesses should ensure their DEI programs promote diversity without creating new forms of discrimination. #TheEmployerHandbook #employmentlaw #humanresources

New Attorney General Pam Bondi issued a memo yesterday directing DOJ's Civil Rights Division to prosecute “illegal” DEI and DEIA program. (Slate included a link to the memo in the story it reported today.) https://lnkd.in/gGetR_UP Here’s the key sentence in the memo: “To fulfill the Nation's promise of equality for all Americans, the Department of Justice's Civil Rights Division will investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds.” The footnote to this sentence says: “This memorandum is intended to encompass programs, initiatives, or policies that discriminate, exclude, or divide individuals based on race or sex.” Here is the translation -- If an entity in the private sector, or an educational institution that receives federal funds (which is all of them,) has a preference, a mandate, a policy, a program, or an activity that will “discriminate, exclude, or divide individuals based on race or sex,” that will be considered illegal and DOJ will go after that entity. The question is – How will DOJ interpret the terms “discriminate,” “exclude” and “divide”? (What the hell does “divide” mean anyway?) If DOJ interprets those terms too broadly, I think it will have trouble in the courts – even with the courts we have now. Please, PLEASE – all entities should get good legal advice so they can keep undertaking activities that are NOT illegal under the law. If anything, this memo provides a good roadmap for how to do so. Here are some thoughts on language to use that leverages this memo. (This is not legal advice – hire a lawyer for that!) But here's what entities can say: We are committed to creating an inclusive and fair workplace/school/service setting etc. We are committed to ensuring that no person in this workplace/school/service setting is discriminated against on the basis of race or sex. We are an inclusive environment. We are committed to ensuring that no one is excluded on the basis of race or sex. We are a community in which everyone works together/learns together/receives services together. (That’s the best I can come up with to counter the idea of people being “divided” based on race or sex – whatever the hell that means.)

At the end of July, the Department of Justice published an advisory memorandum telegraphing their enforcement strategy for "unlawful DEI" programs moving forward. The DOJ’s message is clear: anything that advantages or disadvantages people based on race or sex will be investigated as unlawful discrimination, and that includes focused recruitment strategies (e.g., HBCUs);  targeting and benchmarking race or sex based employee representation; providing race or sex-based employee resource groups and sponsoring training content that stereotypes and/or uses terms like “white privilege” or “masculine toxicity.”    This is more than a compliance footnote—it’s a drastic shift in how the federal government will evaluate current policies and programs and may cause legal risk to programs that were very recently considered  “best practice.”  The memo outlines areas where organizations may be most vulnerable and highlights federal enforcement priorities that every employer should track closely. And while this DOJ memorandum raises questions about conflicting laws between the states and the federal government, the implications on HR leaders, compliance officers and executives are significant.  We’ll be sharing deeper analysis soon. For now, every organization should be asking: Are our current programs exposing us to unnecessary DOJ scrutiny?

The recent executive order on “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” has sent shockwaves through the DEI community. With federal agencies now tasked with identifying “illegal DEI,” organizations are left asking: What does this mean for us? One useful framework for understanding what’s being targeted versus what remains legally sound is the distinction between “lifting” and “leveling” DEI strategies. Lifting DEI (which faces the most legal scrutiny) includes actions that grant preferences to underrepresented groups. Examples include: -Hiring set-asides -Tiebreakers based on diversity metrics -Manager bonuses tied to meeting diversity goals Leveling DEI, on the other hand, focuses on removing bias from systems, garnering broader support and facing fewer legal challenges. Examples include: - Blind auditions in orchestras, which helped increase female representation - Structured hiring and promotion processes to ensure fair opportunities - Open mentorship programs that remove barriers to access A huge shoutout to Kenji Yoshino and David Glasgow, who have both been incredible voices on The Will to Change podcast (episodes linked in the comments!), for helping us navigate this complex legal and cultural terrain. Kenji and David  have been instrumental in breaking down what’s at stake and how organizations can move forward thoughtfully. This moment demands clarity in how we define and execute DEI work. Many leaders fear that doing any DEI work makes them a target—but the reality is that leveling strategies remain both legal and widely supported. Perhaps the most telling takeaway? You don’t need to call it “DEI” to do the work. Creating equal opportunity and removing bias from systems remain essential, no matter the political landscape. Now is the time to adapt, not retreat. I'm curious...How is your organization thinking about the future of DEI in this shifting environment? #DEI #InclusiveLeadership #EqualOpportunity #WorkplaceEquity #TheWillToChange https://lnkd.in/gNk5giG4

Several U.S. retailers that publicly scrapped diversity, equity and inclusion programs - including Target, Amazon and Tractor Supply Company - are maintaining certain efforts behind the scenes. These contradictions between public remarks to investors and those made to individuals or small groups illustrate the tightrope they've walked since U.S. President Donald Trump deemed some elements of #DEI illegal and threatened possible investigations into firms that practice it. Advocates say DEI programs aren't exclusionary policies, but are needed to redress longstanding bias, inequity and discrimination, while detractors counter people should be hired solely on merit without taking into consideration gender or race. Companies are "trying to thread the needle - stay true to corporate values, satisfy various stakeholders, but reduce legal risk," said Jason C. Schwartz, an employment law partner at Gibson Dunn who advises corporate clients on their DEI policies. Read more from Nicholas Brown and me at Reuters: https://lnkd.in/enCf-EUC

🔥 𝗧𝗵𝗲 𝗘𝗘𝗢𝗖’𝘀 𝗡𝗲𝘄 𝗗𝗶𝗿𝗲𝗰𝘁𝗶𝗼𝗻: 𝗪𝗵𝗮𝘁 𝗘𝗺𝗽𝗹𝗼𝘆𝗲𝗿𝘀 𝗡𝗲𝗲𝗱 𝘁𝗼 𝗞𝗻𝗼𝘄 𝗔𝗯𝗼𝘂𝘁 𝗔𝗰𝘁𝗶𝗻𝗴 𝗚𝗲𝗻𝗲𝗿𝗮𝗹 𝗖𝗼𝘂𝗻𝘀𝗲𝗹 𝗔𝗻𝗱𝗿𝗲𝘄 𝗥𝗼𝗴𝗲𝗿𝘀 Big changes are underway at the EEOC. President Trump has appointed Andrew Rogers as Acting General Counsel, replacing Karla Gilbride, whom Trump terminated last week. Rogers joins Acting Chair Andrea Lucas, marking a sharp shift in the agency’s enforcement priorities. 💡 𝗪𝗵𝗮𝘁 𝗱𝗼𝗲𝘀 𝘁𝗵𝗶𝘀 𝗺𝗲𝗮𝗻? 𝗧𝗵𝗲 𝗘𝗘𝗢𝗖 𝗶𝘀 𝗽𝗶𝘃𝗼𝘁𝗶𝗻𝗴—𝗳𝗮𝘀𝘁. What to Expect from the Rogers-Led EEOC ⚖️ 𝗠𝗼𝗿𝗲 𝗘𝗺𝗽𝗹𝗼𝘆𝗲𝗿-𝗙𝗿𝗶𝗲𝗻𝗱𝗹𝘆 𝗘𝗻𝗳𝗼𝗿𝗰𝗲𝗺𝗲𝗻𝘁 – The days of aggressive systemic discrimination litigation may be numbered. Under Lucas and Rogers, the EEOC is likely to scale back major class-action-style lawsuits, focusing on cases challenging DEI programs, gender identity protections, and religious accommodations. 📉 𝗦𝘆𝘀𝘁𝗲𝗺𝗶𝗰 𝗗𝗶𝘀𝗰𝗿𝗶𝗺𝗶𝗻𝗮𝘁𝗶𝗼𝗻 𝗖𝗮𝘀𝗲𝘀 𝗼𝗻 𝗛𝗼𝗹𝗱? – With only two sitting commissioners, the EEOC lacks a quorum needed to approve large-scale cases. This means routine discrimination claims will continue, but expect fewer high-profile systemic investigations—at least for now. ⚠️ 𝗖𝗼𝗺𝗺𝗶𝘀𝘀𝗶𝗼𝗻𝗲𝗿-𝗜𝗻𝗶𝘁𝗶𝗮𝘁𝗲𝗱 𝗖𝗵𝗮𝗿𝗴𝗲𝘀 𝗼𝗻 𝘁𝗵𝗲 𝗥𝗶𝘀𝗲 – Lucas has already shown a willingness to personally initiate investigations into employers whose DEI programs or gender identity policies she views as discriminatory. 📜 𝗣𝗼𝗹𝗶𝗰𝘆 𝗥𝗲𝘃𝗲𝗿𝘀𝗮𝗹𝘀 𝗔𝗿𝗲 𝗔𝗹𝗿𝗲𝗮𝗱𝘆 𝗛𝗮𝗽𝗽𝗲𝗻𝗶𝗻𝗴 – The EEOC has quietly revoked key technical assistance documents, including those related to AI in hiring, gender identity, and sexual orientation discrimination. More rollbacks are likely as the agency redefines its enforcement playbook. 💼 𝗟𝗲𝗴𝗮𝗹 𝗨𝗻𝗰𝗲𝗿𝘁𝗮𝗶𝗻𝘁𝘆 & 𝗣𝗼𝘁𝗲𝗻𝘁𝗶𝗮𝗹 𝗥𝗲𝘁𝗮𝗹𝗶𝗮𝘁𝗶𝗼𝗻 𝗥𝗶𝘀𝗸𝘀 – While the EEOC may shift gears on which cases it pursues, employers should still tread carefully. Abrupt changes to DEI programs, gender policies, or pay equity initiatives could trigger private litigation or state-level enforcement actions. 𝗪𝗵𝗮𝘁 𝗘𝗺𝗽𝗹𝗼𝘆𝗲𝗿𝘀 𝗦𝗵𝗼𝘂𝗹𝗱 𝗗𝗼 𝗡𝗢𝗪 ✅ 𝗦𝘁𝗮𝘆 𝗨𝗽𝗱𝗮𝘁𝗲𝗱 𝗼𝗻 𝗘𝗘𝗢𝗖 𝗚𝘂𝗶𝗱𝗮𝗻𝗰𝗲 𝗦𝗵𝗶𝗳𝘁𝘀 – Be proactive in monitoring policy changes, revoked guidance, and enforcement trends.  ✅ 𝗣𝗿𝗲𝗽𝗮𝗿𝗲 𝗳𝗼𝗿 𝗧𝗮𝗿𝗴𝗲𝘁𝗲𝗱 𝗜𝗻𝘃𝗲𝘀𝘁𝗶𝗴𝗮𝘁𝗶𝗼𝗻𝘀 – Employers, particularly those with strong DEI commitments, should be ready for increased scrutiny from the EEOC, even in the absence of employee complaints. 💭 𝗕𝗼𝘁𝘁𝗼𝗺 𝗟𝗶𝗻𝗲: The EEOC under Rogers and Lucas is not business as usual. Expect more scrutiny of DEI, gender identity protections, and employer-led diversity efforts—and fewer large-scale discrimination cases. What do you think about the EEOC’s new direction? Drop your thoughts in the comments. 👇