New Challenges Emerge for Employers’ Diversity, Equity, and Inclusion (DEI) Programs

A collection of new state laws aims to curtail how certain employers deploy diversity, equity, and inclusion (DEI) programs. These laws, which went into effect Jan. 1, 2024, primarily target state agencies, public colleges, and universities, as Parker Poe noted in a recent article on its site. These new laws are not applicable to private sector employers as the First Amendment prohibits state legislatures from interfering with private company DEI efforts.

New laws aside, private sector employers might face other challenges on the DEI front, including those from individuals alleging reverse discrimination as a consequence of initiatives to boost minority representation in the workforce. Some employers have responded to this by revising internships and other programs to exclude race, gender, or other protected classifications as qualifying criteria.

DEI initiatives within the private sector must adhere to federal civil rights laws, which prohibit the use of protected classifications as criteria for employment decisions, extending protection to non-minority classifications as well. Violating these principles, such as hiring individuals solely to increase minority representation, would breach Title VII.

Legal DEI efforts must eschew setting quotas and prioritizing race or gender for specific positions. Instead, the focus should be on enlarging the pool of qualified diverse candidates for hiring, retention, and promotion. The aim should be to enhance workforce diversity by selecting the best-qualified candidates, irrespective of their classifications.

To navigate these complexities, legal and human resource professionals should work together to develop and implement DEI programs. Existing initiatives should undergo scrutiny to mitigate potential claims of reverse discrimination.