For HR leaders, a lot has changed regarding DEI compliance since President Trump entered office again last January.
Nathanael Wright, a partner and the director of DEI at law firm CMBG3, based in Savannah, Georgia, gives his take on how HR leaders should navigate the changing waters.
How have the changes in the second Trump administration impacted the manner in which businesses conduct DEI programs?
The Trump administration has significantly impacted the approach that both government and businesses take toward DEI programs through executive orders and other sweeping policies and revised procedures.
Recent executive orders have mandated the termination of many DEI initiatives within federal agencies and have influenced private sector practices by emphasizing merit-based employment and eliminating DEI-related mandates.
Businesses are now navigating a more stringent regulatory environment, requiring them to reassess and potentially restructure their DEI programs to ensure compliance with new federal directives. In an attempt to avoid backlash and scrutiny, some companies have revised and rebranded their DEI initiatives to stay true to their goals and mission.
How can companies structure DEI initiatives to comply with Title VII of the Civil Rights Act and avoid discrimination claims?
The Civil Rights Act of 1964 aims to end discrimination based on race, color, religion, sex or national origin. Although the law has not changed, the focus of its application may evolve.
To comply with Title VII of the Civil Rights Act, companies must ensure that their DEI initiatives do not involve preferential treatment or exclusion based on protected characteristics such as race, sex or national origin. Businesses should focus on creating inclusive environments that benefit all employees without singling out specific groups.
For example, while a group meeting may focus on a specific topic or affinity group, these meetings should remain open for all employees to attend. Regarding hiring and retention, employers should use neutral, job-related criteria for hiring, promotions and training opportunities.
Lastly, companies should conduct regular reviews of DEI policies and practices to ensure they align with Title VII requirements and do not inadvertently discriminate against employees.
What are the legal implications of implementing affinity groups or targeted recruitment programs for underrepresented groups?
Affinity groups are groups of people who share a common interest, background or goal, often related to their identity or experiences. Employers who implement official affinity groups or create targeted recruitment programs can pose legal risks if they result in disparate treatment or exclusion of other employees based on protected characteristics such as race, gender, sexual orientation or disability.
The newly revamped Equal Employment Opportunity Commission and the Department of Justice have explained that limiting membership in workplace groups to certain protected groups or using quotas can be considered unlawful discrimination under Title VII. Employers must ensure that such programs are inclusive and open to all employees to avoid potential legal action.
How should employers handle complaints related to DEI initiatives, such as claims of “reverse discrimination” or exclusion?
Recent case filings across the country, coupled with the Trump administration’s approach to DEI have resulted in a spike in reverse discrimination claims, which involve allegations of discrimination from members of a dominant or majority group. Employers should take these claims seriously and conduct a prompt investigation.
Additionally, employers should be transparent with the claimant regarding the process and findings. Furthermore, employers need to be cautious of any actions taken against the complainant to avoid a retaliation claim.
Short of abandoning ongoing DEI efforts, what should employers do to maintain meaningful DEI programs but also stay in compliance to avoid legal scrutiny?
DEI programs have benefited companies in terms of camaraderie, efficiency and profitability. With that understanding, employers should determine their core values to tailor their DEI programs to their specific needs.
To ensure meaningful DEI programs, employers need to focus on inclusiveness for all employees, provide training on compliance and maintain evolving documentation that supports DEI initiatives and ensures adherence to the company’s objectives while remaining lawful.
Lastly, employers should stay up-to-date with EEOC and other legal guidance to ensure ongoing compliance with federal and state laws.
