DEI and the Law: A Practical Guide for Employers
Introduction
In an era of rising political scrutiny and shifting legal interpretations, many employers are asking the same question: Can we still do DEI?
The short answer, according to former EEOC Commissioner Chai Feldblum, is a resounding yes—as long as it’s done lawfully, thoughtfully, and inclusively. Given the current political and legal climate, it’s crucial for employers to understand how to navigate these complexities while maintaining their commitment to diversity, equity, and inclusion.
Understanding the Legal Framework
At its core, the law—particularly Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”)—prohibits discrimination and harassment based on protected characteristics. It doesn’t explicitly require “DEI,” but its goals and outcomes are inherently aligned with building a workplace that is diverse, equitable, and inclusive.
Feldblum stressed a critical distinction: treating people equally isn’t always equitable. Legal compliance means recognizing systemic barriers and creating conditions where all employees can thrive.
Avoiding Pitfalls: The Line Between Inclusion and Preference
Legal risk arises when diversity efforts are poorly structured. For instance, setting quotas or making race or gender the deciding factor in hiring decisions crosses the line. Similarly, internships or affinity groups that explicitly exclude others can create legal exposure.
Instead, employers should broaden their recruitment pipelines, use demographic data to guide goal setting, and ensure all DEI-related activities are inclusive and consistent with business objectives. For example, rather than creating an internship program exclusively for people of color, design programs that target underrepresented groups broadly without excluding others.
“Refresh,” Don’t Retreat
In today’s climate, Feldblum advises a strategic “refresh” rather than a retreat. This means:
Continuing to support pronoun usage and inclusive language.
Maintaining affinity groups that welcome all allies, not just core members.
Redoubling efforts around training—not just anti-harassment, but respectful workplace behavior. As Feldblum puts it, “Uncivil behavior is the gateway drug to harassment.” A respectful workplace culture is not only more productive—it’s a solid legal defense.
Practical Steps Employers Can Take Now
Audit DEI Programs: Ensure no element creates unlawful preference or exclusion. Regularly review and update your DEI initiatives to align with current legal standards.
Invest in Training: Include civility, respect, and anti-harassment as core elements. Training should focus on changing behavior, not minds or even attitudes.
Track Metrics: Use demographic data to measure recruitment, promotion, and retention. This data can help identify areas for improvement and ensure accountability.
Communicate Clearly: Reinforce your company’s commitment to equity and inclusion. Clear communication from leadership can help maintain employee morale and trust.
Stay Informed: Keeping up to date with legal developments can help minimize risk. Use resources like EEOLeaders.org for general guidance. Consult outside employment counsel for answers to specific DEI-related questions.
Navigating Political Backlash
Despite recent settlements and politicization, employers can and should “refresh,” not abandon, DEI. Train for civility and respectful workplaces—it’s both good practice and provides a good defense in case of a discrimination claim.
Employers should analyze their activities to ensure they are consistent with the law and not based on preferences or exclusions. For example, avoid setting quotas or making hiring decisions based solely on race or gender.
Conclusion
Ultimately, DEI—done right—is not only legal but essential. It’s time to move from fear to fidelity, refresh your approach, and recommit to the values that create lasting, inclusive workplaces. DEI initiatives, when implemented correctly, can enhance business performance, foster a positive workplace culture, and ensure legal compliance.
Amy Epstein Gluck, Chair, Employment, Labor, and Benefits Department
Eric Meyer, Partner, Employment, Labor, and Benefits
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