October 15, 2025
DEI Strikes Again – This Time to the Tune of $85M
It is my opinion (and not legal advice to those of you reading this) that Diversity, Equity, and Inclusion or DEI programs are still permissible. The problem has been for years and well before President Trump’s Executive Order was issued in how DEI programs were administered. We have seen it happen time after time after time and then some more.
Here is yet another example. In this case it was alleged that in March 2020, this employer had a DEI program that had what I describe as laudable goals. It “created initiatives to boost diversity and inclusion efforts…established diversity, equity, and inclusion councils at the business level to implement and oversee strategic efforts to improve diversity and inclusion in [the company’s] workforce and beyond.” But it was how the program was administered that ran afoul of existing federal employment laws that prohibit discrimination based on sex, race, and more, like Title VII of the Civil Rights Act of 1964. The employer has agreed to settle the matter for the above-mentioned amount.
For example, one policy under this program “required interview slates to consist of at least 50% diverse candidates for most U.S. positions with compensation above $100K…’Diverse’ was defined based on race or ethnicity, sex or gender, veteran-status, sexual orientation, and disability.” BAM! That’s unlawful discrimination – making employment decisions, such as who will/not be interviewed, based on a legally protected status. What’s an option?
Perhaps if the program had required the candidates for those interview slates be recruited from diverse applicant pools, the result might have been different. Inviting more diverse applicants to apply in and of itself is not unlawful. The U.S. EEOC and DOJ’s recent guidance on DEI Discrimination recognized, “Title VII permits diversity efforts designed to open up opportunities to everyone.” Since 2006, and revisited in 2013, the EEOC has warned employers that using interview “slates” may constitute unlawful harassment.
If you are an employer that has recently disbanded your DEI-related policies, programs, and practices or you are considering doing so, you may want to pause. Consult with your employment attorney. Talk about why you had the program. What were the goals? What practices did you employ to meet those goals? You might find that your program has been lawful all along and is one you want to keep.
