Employers Guide to the New World of “Illegal DEI”

Attorneys from K&L Gates provide a primer on the rapidly evolving DEI situation in light of litigation and guidance from both federal and state governments, including Nat’l Assoc. of Diversity Officers in Higher Ed., et al. v. Donald J. Trump, et al., in the District Court for the District of Maryland.

“This alert will explore what the federal government may consider illegal DEI,’” they write, “in light of legal challenges to President Trump’s multiple Executive Orders pertaining to diversity, equity, inclusion, and accessibility and provide employers with some best practices with respect to DEI initiatives.”

The Maryland court has enjoined several Trump Executive Orders, largely because they failed to define basic operative terms, such as “illegal DEI policies” and even the term DEI itself. The Trump administration has appealed to the Fourth Circuit Court of Appeals.

Although the federal government has failed to formally define “illegal DEI,” employers can glean some guidance from current federal anti-discrimination law, scattered communications out of federal agencies, and state law guidance.

Among the specific documents the writers suggest consulting are a memo from the US Office of Personnel Management (OPM) regarding the future of federal agencies’ DEI programs and a multi-state guidance issued by the attorneys general of 15 states.

The OPM memo lists, for example, a number of DEI practices no longer permitted in federal agencies, including so-called “diverse slate” hiring.

The multi-state guidance from the AGs takes the position that the Executive Orders do not prohibit lawful DEI initiatives in the private sector. It specifies a wide range of DEI practices that may continue in that space.

The K&L Gates attorneys conclude with a list of dos and don’ts. They suggest that employers conduct internal audits of their DEI policies, especially regarding recruitment and hiring. Employers could also consider continuing to provide training that addresses unconscious bias and disability awareness.