DEI - diversity, equity, and inclusion - is a set of principals promoting participation and representation of all people, and particularly historically disadvantaged groups, in areas like employment, academia, and public accommodation. It's a socio-legal initiative, a successor of "affirmative action" and "political correctness". However laudable its goals, adopting DEI isn't only not required, it could create unnecessary risks for your venture. This post explains why.
You can't use race, gender, and similar classifications to make hiring and firing decisions. Adopting policies requiring you to do so is an invitation to litigation.
| "They" Say | True or False? |
|---|---|
| DEI adoption is a legal requirement. | False. The legal framework established by the 1964 Civil Rights Act prohibiting discrimination against employees (and others) hasn't changed. You can't use race, gender, national origin, and related factors to make hiring, firing, and similar decisions. There are no carve outs for "diversity" or "equity". Not only is your venture not required to adopt any aspect of DEI, doing so can be deemed discriminatory and actionable. |
| Adopting DEI is consistent with applicable law. | Also false (probably). The U.S. Supreme Court recently struck down DEI-type initiatives in university admissions. It has not done so with respect to employment. Some state attorney generals have therefore opined that DEI workplace initiatives can be legally adopted. Others disagree. While we can't predict the future (our "Magic 8 Ball" is still in the shop), recent Supreme Court cases suggest the anti-discrimination legal framework that's been in place since 1964 isn't changing, meaning DEI initiatives in the workplace could eventually be prohibited. |
| There's no risk to adopting DEI initiatives. | Very false. Most employment laws prohibit discrimination on the basis of race, gender, sexual orientation, ethnicity, national origin, or religion. Period. There are no carve outs for DEI or affirmative action. Any policy that permits otherwise prohibited discrimination - even considering race, gender, or a similar classifications in employment decisions for the "right" reasons - is potentially problematic. |
| We shouldn't adopt any DEI practices. | False. The goal of DEI - a more inclusive, accommodating working environment for all - is laudable. DEI programs may include practices that are both beneficial and compliant. But when in doubt the law trumps. You can't use race, gender, and similar classifications to make hiring and firing decisions. Adopting policies requiring you to do so is an invitation to litigation. |
| This could all change. | True, but not likely. The Supreme Court may decide DEI initiatives in employment are OK. But that seems unlikely. First, the Court has already struck them down in college admissions. Second, the court has reaffirmed (and even expanded) the scope of the existing framework for civil rights in employment in several key cases since 2015. DEI "intentional hiring" programs remain at odds with existing employment law. It would take legislative repeal of some provisions of the Civil Rights Act of 1964 to change that reality. |