Employers Need to Stop These DEI Practices or Face Potential Consequences

Since January’s change in presidential administrations, there has been a great deal of discussion about the legality diversity, equity and inclusion (DEI) initiatives. Some of these programs seem to violate anti-discrimination laws by favoring members of certain groups over similarly situated people from other legally protected classes. Still, there are many questions about what exactly constitutes unlawful conduct. 

In a July 29 memorandum, the Department of Justice (DOJ) issued extensive guidance on the illegality of certain DEI efforts. Specific forms of unlawful practices that the DOJ says could disqualify an organization from grant funding include the following:

  • Group-based scholarships and mentorship programs — Initiatives described as “race-exclusive opportunities” are generally prohibited. Some examples are scholarships, internships and mentoring programs that are limited to a certain racial group. Training sessions designed for workers of a particular race, sex or other protected characteristic are also likely to constitute unequal treatment. 

  • Preferential hiring practices — “Diverse slate” requirements and panels created to promote hiring among so-called underrepresented groups are considered unlawful practices. While enhancing workforce diversity remains a valid governmental interest, bypassing equally qualified applicants purely on the basis of a legally protected trait conflicts with Title VI and Title VII requirements.

  • Restricted facilities and resources — Creating exclusive “safe spaces” or lounges reserved for people of a specific racial or ethnic background may foster community and support—but it can also constitute unlawful segregation. The DOJ warns that even voluntary-use facilities must remain open to all regardless of individual characteristics, absent a compelling governmental interest and strict tailoring. 

Though the memo specifically deals with federally funded institutions, it provides clear insight on how anti-DEI measures will be enforced by federal agencies against other employers. It is wise to take prompt action by reviewing internship programs, hiring practices and facility use. Outreach efforts should be race-neutral, and training might be necessary to ensure that managers and workers are aware of how anti-discrimination laws are likely to be implemented for the foreseeable future. 

If you’ve been the victim of disparate workplace treatment due to DEI initiatives or some other reason, it’s time to speak with an attorney from Kardell Law Group. Our firm provides strong advocacy to victims of reverse discrimination and other illegal workplace practices.