Responding to Executive Orders, Organizations Evolve Their Inclusion and Workforce Development Efforts
What an exciting time to be an employment lawyer. The first few weeks of the Trump administration in the United States have been a rollercoaster of directives, executive orders (EOs), and corporate confusion, especially around diversity, equity, and inclusion (DEI) programs.
Federally, hundreds of government DEI program workers have been fired across dozens of agencies, and interest or affinity groups—such as workplace social groups for women, LGBTQ+ employees, Hispanic people, or veterans—have been disbanded. Federal contractors scrambled to comply with the same EOs. Meanwhile some key provisions of the orders have been blocked in federal courts, teeing up further legal battles.
During the past month, corporations and private entities swiftly huddled up with their general counsel to debate what the latest orders mean for them. Should you scrub the word “diversity” from your website? Should messaging for Black History Month be cancelled? What, exactly, does the federal government mean by “illegal DEI”?
The letter of the law might not have officially changed, but the spirit of it and expected enforcement actions as a result of EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”) have made private companies nervous, The New York Times reported. Private-sector anti-discrimination law is still rooted in Title VII of the 1964 Civil Rights Act, which bans employers from making employment decisions on the basis of race, sex, or other protected classes. But under the Trump administration, Equal Employment Opportunity Commission officials have shifted their priorities to focus on discrimination against majority groups through DEI programs.
Most advice reported so far starts at the same point: Work closely with legal counsel to evaluate existing policies and ensure any changes comply with current laws. This is a fast-paced and evolving area right now, and requirements might change as the nuances are interpreted.
HR and legal experts seem to agree that companies can—and should—continue to support a variety of inclusion and belonging efforts at work, train employees on how to recognize and report discrimination, broaden recruiting efforts to reach a bigger talent pool, and other efforts that traditionally have been linked to DEI policies. However, any hiring and promotion decisions need to be made strictly on merit, without weighing the candidate’s race, age, gender, or any other protected characteristics.
In an article for Harvard Business Review, three directors from the Meltzer Center for Diversity, Inclusion, and Belonging explained that organizations put themselves at legal risk when they suggest—through communications or actions—that they confer a preference on a protected group with respect to a palpable benefit (what the authors call the “three Ps”).
For example, an organization’s hiring page might say, “We use diversity hiring to recruit people from underrepresented racial or ethnic backgrounds.” Under the new EOs, this is risky—it could suggest that the organization considers race in employment decisions. Instead, the authors suggest using aspirational language but clarifying employment criteria. An example: “While we strive for a diverse mix of candidates, all employment decisions are made without regard to race, sex, or other protected characteristics.”
Tying executive compensation to diversity goals could be risky because it appears to incentivize hiring people based on race or sex, guidance from attorneys at Smith Anderson said.
In addition, fellowships, internships, and mentorship programs that are only open to people of certain protected groups could now be legally risky according to a blog from the Law Office of Thomas J. Crane. Lawyers are advising clients to put those programs on hold or reframe them to be open to all applicants.
Organizations put themselves at legal risk when they suggest—through communications or actions—that they confer a preference on a protected group with respect to a palpable benefit.
Nonexclusive diversity programs—such as employee resource groups (ERGs), unconscious bias training, educational events, and mentoring workshops that are open to all—are generally at low risk and could continue, employment lawyers told the Times.
But organizations that had exclusive ERGs—such as a women in leadership mentoring group—should consider renaming and reframing the groups to focus on shared experiences rather than identity-based criteria, advised HR compliance training firm Emtrain. Instead, try launching a leadership development network that stays inclusive while supporting underrepresented talent, according to Emtrain’s guide about how HR teams can respond to the DEI EOs.
Emtrain recommended that organizations “do not eliminate ERGs, but adjust their structure to focus on professional development, business impact, and broad participation.”
This is a common refrain: don’t eliminate—evolve. The Society for Human Resource Management (SHRM) released a five-point framework, Belonging Enhanced by Access Through Merit (BEAM), to help organizations evaluate their programs amid the changing diversity and inclusion landscape.
- Anti-exclusion: Are the program’s opportunities open to all, without regard to any protected status?
- Access for all: Does the program generate opportunities to participate based on the individual’s requisite merit, including existing skills and proficiencies?
- Merit-driven: Does the program select individuals to participate based on relevant qualifications, while accommodating protected medical conditions or religious practices?
- Unbiased and available information: Is the availability of the program effectively communicated to all individuals?
- Skills-first optimization: Does the program provide opportunities to develop relevant skills, qualifications, and experience for all individuals who are eligible to participate?
The questions put merit at the center of talent identification and development programs. SHRM also recommended focusing on access over identity, such as expanding recruitment pipelines by partnering with community organizations to reach skilled, nontraditional talent. Organizations can still embed inclusion in their professional development efforts by ensuring that everyone has access to skills-based training.
“Combined, these principles ensure that talent pipelines reflect potential, not privilege, and lead to stronger teams, greater innovation, and sustainable growth,” according to SHRM.
Claire Meyer is editor-in-chief of Security Management. Connect with her on LinkedIn or via email at [email protected].
