Catégorie : HR News

In the context of DEI programs, unlawful segregation can include limiting membership in workplace groups, such as Employee Resource Groups (ERG), Business Resource Groups (BRGs), or other employee affinity groups, to certain protected groups. Under Title VII, an employer initiative, policy, program, or practice may be unlawful if it involves an employer or other covered entity taking an employment action motivated—in whole or in part—by race, sex, or another protected characteristic. If you are a federal employee and believe your federal agency employer discriminated against you based on a protected characteristic as a result of, or related to, DEI, you first must contact an EEO counselor at your federal agency employer.

They have also pressured foreign companies with U.S. government contracts to comply with the order, drawing ire from foreign officials. As of 2024, affirmative action in the United States had been increasingly replaced by emphasis on diversity, equity, and inclusion, while nine states explicitly banned affirmative action use in the employment process. In 2023, the Supreme Court explicitly rejected affirmative action regarding race in college admissions in Students for Fair Admissions v. Harvard. The Economist has also stated that surveys of international companies indicate that the number of people hired for jobs with « diversity » or « inclusion » in the title more than quadrupled since 2010. It helps eligible veterans access federal job opportunities by allowing them to compete for positions typically open only to current federal employees and by reinforcing veterans’ preference in hiring. In 1990, President George H. W. Bush signed the Americans with Disabilities Act, which requires employers to provide reasonable accommodations to employees with disabilities, and imposes accessibility requirements on public accommodations.

More recently, concepts have moved beyond discrimination to include diversity, equity, and inclusion as motives for preferring historically underrepresented groups. Blind-made products are used throughout the federal government, and include brands such as Skillcraft, ARC Diversified, Austin Lighthouse, and Ability One. Later amendments added veterans from conflicts after World War II, special provisions for the mothers of disabled or deceased veterans, and job-specific training for veterans entering the federal or private workforce. In 1944, the Veterans’ Preference Act codified the previous executive orders, clarified criteria, and included special hiring provisions for disabled veterans. Early DEI efforts included preferential hiring and treatment of veterans of the US Civil War, their widows, and orphans, in 1865. The concepts of DEI predate the terminology, and variations sometimes include terms such as « belonging », « justice », and « accessibility ».

Key Contacts

• They have also pressured foreign companies with U.S. government contracts to comply with the order, drawing ire from foreign officials.
• While some believe DEI included in school curriculums are favoring one identity or community over another, there have been arguments that DEI in schools can be beneficial for student development, as shown by research, finding that student participation in DEI practices can improve overall achievement levels.
• In the context of DEI programs, unlawful segregation can include limiting membership in workplace groups, such as Employee Resource Groups (ERG), Business Resource Groups (BRGs), or other employee affinity groups, to certain protected groups.
• More recently, concepts have moved beyond discrimination to include diversity, equity, and inclusion as motives for preferring historically underrepresented groups.
• For organizations to remain compliant, it’s essential that they revisit their DEI strategies and audit risk exposure.

The Supreme Court in June 2023 upended equal protection law with its decision in Students for Fair Admissions v. Harvard, eliminating the use of affirmative action in college admissions, but did not directly affect employers. U.S. government departments have ordered probes of organizations that practice DEI, including hospitals, universities, federal contractors, and media companies. The Court held that affirmative action programs « lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints. We have never permitted admissions programs to work in that way, and we will not do so today ». By reviewing DEI policies for compliance with current law and delivering training grounded in antidiscrimination principles, organizations can maintain inclusive workplaces while mitigating legal and reputational risks. The March 26 Order directs all federal departments and agencies to ensure that a new clause is included in all new and modified federal contracts and subcontracts within 30 days (April 25, 2026).

(c) Within 120 days of the date of this order, each agency head shall review the agency’s implementation of section 3 of this order and report to the Assistant to the President for Domestic Policy regarding its compliance with that section. (ii) take appropriate action to suspend and debar contractors or subcontractors for such failures to comply. (i) cancel, terminate, suspend, or cause to be cancelled, terminated, or suspended, any contract or contract-like instrument, or any portion or portions thereof, for failure of the contractor or subcontractor to comply with the clause described in section 3 of this order; and (a) The Director of the Office of Management and Budget shall issue guidance to contracting agencies to ensure compliance with this order. The contractor will report any subcontractor’s known or reasonably knowable conduct that may violate this clause to the contracting department or agency and take any appropriate remedial actions directed by the contracting department or agency;

Conduct a Privileged Review of DEI Programs

Can an employer excuse its DEI-related considerations of race, sex, or another protected characteristic, provided that the protected characteristic wasn’t the sole or deciding factor for https://www.onlegalresources.com/california-employment-agreements.html the employer’s decision or employment action? Employers instead should provide “training and mentoring that provides workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascend to upper-level jobs.” Employers also should ensure that “employees of all backgrounds . Unlawful limiting, segregating, or classifying workers related to DEI can arise when employers separate workers into groups based on race, sex, or another protected characteristic when administering DEI or any trainings, workplace programming, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources. Title VII also prohibits employers from limiting, segregating, or classifying employees or applicants based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities. Are only employers “covered entities” under Title VII, that is, entities which must comply with Title VII’s prohibition on discrimination?

42 U.S.C. § 2000e-2(a) (employers); § 2000e-2(b) (employment agencies); § 2000e-2(d) (training programs); § 2000e-2(c) (labor organizations). Depending on the facts, protected opposition could include opposing unlawful employment discrimination related to an employer policy or practice https://bestchicago.net/1000-inflation-relief-payments-for-full-time-workers.html labeled as “DEI.”. Generally, protected activity consists of either participating in an EEO process (such as an employer or EEOC investigations or filing an EEOC charge) or opposing conduct made unlawful by Title VII. Title VII prohibits employers and other “covered entities” from retaliating because an individual has engaged in protected activity under the statute. Employment decisions based on the discriminatory preferences of clients, customers, or coworkers are just as unlawful as decisions based on an employer’s own discriminatory preferences.

At the same time, recent revisions to federal contracting requirements, state-level attorney general guidance and the temporary pause on Foreign Corrupt Practices Act (FCPA) enforcement all contribute to a complex, fast-changing compliance environment. While the legal foundations prohibiting workplace discrimination and harassment remain in place, the tone and focus of enforcement have shifted, forcing companies to question longstanding inclusion goals and programs. Because the administration is likely to take steps quickly to ensure enforcement of the March 26 Order after the 30-day implementation window, companies should be moving swiftly to prepare. Collect and review all prime contracts, subcontracts, and vendor agreements connected to federal government work. The March 26 Order’s definition of “program participation” combined with the administration’s statement that it will scrutinize attempts to conceal or repackage race-conscious programs demonstrates a need for a close, substantive review.

• A 2025 poll by Axios found that more than 50% of Americans across all demographics surveyed said that DEI initiatives had made « no impact » on their jobs.
• As the Equal Employment Opportunity Commission (EEOC) sharpens its focus on DEI, the agency is making the rounds to educate and inform employers of the EEOC’s current approach to enforcement.
• A September 2024 poll by the Human Rights Campaign found that 80% of LGBTQ Americans would boycott a company that repealed its DEI programs and 19% would quit their job if their place of employment did.
• In January 2025, Donald Trump signed an executive order requiring U.S. military academies to end affirmative action in admissions; the order was implemented the next month.
• The March 26 Order’s definition of “program participation” combined with the administration’s statement that it will scrutinize attempts to conceal or repackage race-conscious programs demonstrates a need for a close, substantive review.
• On March 26, 2026, President Trump signed a new Executive Order titled “Addressing DEI Discrimination by Federal Contractors” (the March 26 Order), which imposes significant new contractual obligations on federal contractors and subcontractors relating to diversity, equity, and inclusion (DEI) programs and practices.

Under Title VII, DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic. Title VII prohibits employment discrimination based on protected characteristics such as race and sex. From the end of 2025 to the end of March 2026, 60 percent of financial companies in the S&P 500 included a diversity- related disclosure in their 10-Ks, down from 94 percent in 2025 and consistent with 55 percent across the entire S&P 500 for the same period. https://myshoppingconnection.com/how-is-telecommuting-changing-global-workplace-cultures/ Given the increased level of focus across the Trump Administration, including at the EEOC, on both traditional and reverse discrimination claims tied to DEI programs, even diversity-related content that does not reference DEI specifically may represent a risk.

“Program participation” is further defined to include membership or participation in, or access or admission to, training, mentoring, or leadership development programs; educational opportunities; clubs; associations; or similar opportunities sponsored or established by the contractor or subcontractor. On March 26, 2026, President Trump signed a new Executive Order titled “Addressing DEI Discrimination by Federal Contractors” (the March 26 Order), which imposes significant new contractual obligations on federal contractors and subcontractors relating to diversity, equity, and inclusion (DEI) programs and practices. Our DEI and Equal Employment Opportunity Compliance Team helps businesses administer and evaluate legally sound, effective DEI policies and initiatives that align with federal and state requirements while advancing workplace culture and business objectives. When it comes to diversity, equity, and inclusion (DEI) programs employers must balance their commitment to fostering inclusive workplaces with the need to comply with evolving laws and regulations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Some schools are removing the word « diversity » from titles of offices and jobs; some are closing campus spaces set up for students according to identity; some are ending diversity training; and some have stopped asking all faculty and staff members for written affirmations of their commitment to diversity. Of those who said it did have an impact, a majority in almost all demographics said DEI had « benefited » their job rather than « hindered » it. A 2025 poll by Axios found that more than 50% of Americans across all demographics surveyed said that DEI initiatives had made « no impact » on their jobs. A September 2024 poll by the Human Rights Campaign found that 80% of LGBTQ Americans would boycott a company that repealed its DEI programs and 19% would quit their job if their place of employment did. In January 2025, Donald Trump signed an executive order requiring U.S. military academies to end affirmative action in admissions; the order was implemented the next month. While some believe DEI included in school curriculums are favoring one identity or community over another, there have been arguments that DEI in schools can be beneficial for student development, as shown by research, finding that student participation in DEI practices can improve overall achievement levels.

With some states moving to remove the protected characteristic of gender identity from their antidiscrimination laws, employers operating across jurisdictions face added complexity and should prioritize clarity in their training programs. Guidance from a coalition of 16 state attorneys general underscores the importance of continuing nondiscriminatory DEI efforts, reinforcing these programs as a risk mitigation strategy. For organizations to remain compliant, it’s essential that they revisit their DEI strategies and audit https://business-soulwork.com/where-to-invest-in-leadership-development/ risk exposure.

Basing employment decisions on the racial preferences of clients, customers, or coworkers constitutes intentional race discrimination. Employers violate Title VII if they take an employment action motivated—in whole or in part—by race, sex, or another protected characteristic. For there to be unlawful discrimination, race or sex (or any other protected characteristic under Title VII) does not have to be the exclusive (sole) reason for an employer’s employment action or the “but-for” (deciding) factor for the action.

Promoting Efficiency, Accountability, and Performance in Federal Contracting

In August 2021, the US Securities and Exchange Commission (SEC) approved Nasdaq’s proposed rules requiring listed companies to ensure women and minority directors were on their boards or provide an explanation of why they were not. There is meaningful variation within organizations’ employees in the attitude they hold toward DEI policies and to what extent it influences their actions. Equality and affirmative action professionals employed by US firms along with equality consultants, engaged in establishing the argument that a diverse workforce should be seen as a competitive advantage rather than just as a legal constraint. The stated justification for affirmative action by its proponents is to help compensate for past discrimination, persecution or exploitation by the ruling class of a culture, and to address existing discrimination. It is often implemented in governmental and educational settings to ensure that designated groups within a society can participate in all promotional, educational, and training opportunities.

Current Public Notices

Equal Employment Opportunity Commission (EEOC) has intensified its scrutiny of DEI initiatives leading to litigation and subpoena enforcement efforts, and companies must navigate an increasingly complex patchwork of sometimes conflicting state and federal requirements. Federal contractors and subcontractors, in particular, face new certification requirements and heightened risk of potential False Claims Act (FCA) liability. If you would like to discuss becoming a client, please contact one of our attorneys to arrange for a meeting or telephone conference. For more information about our cookie policy and the information we collect, please review our Privacy Statement.

• Equal Employment Opportunity Commission (EEOC) has intensified its scrutiny of DEI initiatives leading to litigation and subpoena enforcement efforts, and companies must navigate an increasingly complex patchwork of sometimes conflicting state and federal requirements.
• The contractor recognizes that compliance with the requirements of this clause are material to the Government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code (False Claims Act).”.
• Employers instead should provide “training and mentoring that provides workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascend to upper-level jobs.” Employers also should ensure that “employees of all backgrounds .
• Now more than ever in this rapidly evolving legal landscape fraught with risk, all employers should strive to ensure their DEI strategies and programs fully comply with all applicable federal, state and local law, closely tethering all programs to meet employers’ business needs and deliverables.
• Notably, EO also seeks to make it easier for the government to establish liability under the FCA by building into the contract an explicit representation that the contractor or subcontractor’s certification was material to the government’s payment decision—a key element required for FCA liability.

As the Equal Employment Opportunity Commission (EEOC) sharpens its focus on DEI, the agency is making the rounds to educate and inform employers of the EEOC’s current approach to enforcement. See 42 U.S.C. § 2000e–2(m) (providing for liability “even though other factors also motivated the practice”); EEOC Race Discrimination Guidance (“Title VII is violated if race was all or part of the motivation for an employment decision.”). Id.; see EEOC Race Discrimination Guidance, Part 15-VII(B)(4) (“Informal workplace networks can be just as important to an organization as official job titles and reporting relationships. Thus, an employee’s success may depend not only on his or her job duties, but also on his or her integration into important workplace networks. Employers cannot allow racial bias to affect an employee’s ability to become part of these networks.”); see also id., Example 25 and n. “Pre-employment questions about race can suggest that race will be used as a basis for making selection decisions. Executing “diverse slate” policies also can require employers to ask or otherwise obtain pre-employment information about race, or another protected characteristic.

Different treatment based on race, sex, or another protected characteristic can be unlawful discrimination, no matter which employees or applicants are harmed. Ogletree’s DEI Compliance attorneys stand with the employers we serve, ready to advise on the lawful approaches to the full spectrum of legally compliant DEI strategies and programs within an organization’s specific risk tolerance and needs. Ogletree’s DEI Compliance team provides cutting edge legal advice and content to help organizations design and assess their unique, lawful inclusion practices while preparing for potential legal challenges. The phrase “diversity, equity and inclusion” (DEI) is a conceptual framework promoting the fair treatment and full participation of all people in the workplace.

Fact Sheet: President Donald J. Trump Addresses DEI Discrimination by Federal Contractors

More specifically, equity usually also includes a focus on societal disparities, allocating resources, « decision making authority to groups that have historically been disadvantaged », and taking « into consideration a person’s unique circumstances, adjusting treatment accordingly so that the end result is equal ». (ii) ensure prompt review of civil actions brought by private persons under 31 U.S.C. 3730(b)(1) concerning Federal contracts or subcontracts, including by rendering a decision on whether to proceed with an action under 31 U.S.C. 3730(b)(4), to the maximum extent practicable, within the 60-day period described in 31 U.S.C. 3730(b)(2). Title VII prohibits workplace harassment, which may occur when an employee is subjected to unwelcome remarks or conduct based on race, sex, or other protected characteristics. Title VII applies to employers with 15 or more employees; employment agencies (including staffing agencies); entities which operate training programs (including on-the-job training programs); and labor organizations (like unions). The group brings together attorneys with extensive experience in DEI program implementation, Government Contracting & Reporting, and pay equity to ensure clients are prepared to address the inherent challenges in building effective and legally compliant initiatives.

• Critics have argued that many organizations’ DEI initiatives fail to promote the fair treatment and inclusion of Jewish people, or to take allegations of antisemitism within their organization as seriously as they would allegations of other kinds of bigotry.
• As a result, MIT empaneled a committee to investigate the state of academic freedom at the university.
• Can an employer excuse its DEI-related considerations of race, sex, or another protected characteristic, provided that the protected characteristic wasn’t the sole or deciding factor for the employer’s decision or employment action?
• From the end of 2025 to the end of March 2026, 60 percent of financial companies in the S&P 500 included a diversity- related disclosure in their 10-Ks, down from 94 percent in 2025 and consistent with 55 percent across the entire S&P 500 for the same period.
• Generally, protected activity consists of either participating in an EEO process (such as an employer or EEOC investigations or filing an EEOC charge) or opposing conduct made unlawful by Title VII.

Provide Inclusivity And Diversity Training Grounded In Antidiscrimination

These three notions (diversity, equity, and inclusion) together represent « three closely linked values », which organizations seek to institutionalize through DEI frameworks. While new executive orders signal changes in tone and enforcement, the core requirements around nondiscrimination, equal opportunity and harassment prevention remain. Reinforce internal expectations for conduct and the processes for reporting concerns or violations. Emphasize professional conduct, respectful communication and shared workplace values rather than ideological frameworks.

(a) For the purposes of this order, “racially discriminatory DEI activities” means disparate treatment based on race or ethnicity in the recruitment, employment (e.g., hiring, promotions), contracting (e.g., vendor agreements), program participation, or allocation or deployment of an entity’s resources. Specifically, DEI activities impose artificial costs in hiring, promotion, and operations by precluding implementation of merit-based principles; creating excessive workforce turnover by elevating immutable characteristics over job performance; and jeopardizing the sort of employee collaboration and problem-solving that is essential to fostering efficient and high-quality work. DEI activities are not only unethical and often illegal, but https://www.quickza.com/a-comprehensive-guide-to-ensuring-success.html also cause inefficiencies, waste, and abuse within entities that engage in such practices. Despite this progress, some entities continue to engage in DEI activities and often attempt to conceal their efforts to do so. As employers move into this new enforcement landscape, it is helpful to remember that the enforcement focus is not on “DEI” as a concept — it’s on unlawful discrimination, whatever the label. Emphasizing recent Supreme Court rulings, the EEOC rejects any effort to inject a “diversity exception” to law prohibiting discrimination based on race or sex.

Attorneys for this Practice Group

Amid expanded Executive Orders and heightened EEOC and state attorneys general scrutiny of DEI programs, companies are making notable changes to their diversity-related disclosures. The Nike investigation has involved rescinding a previous settlement agreement and requesting information as far back as 2018, signaling a more expansive review of company practices. Recent enforcement actions include a $500,000 settlement with Planned Parenthood of Illinois, which was the first resolution involving DEI-related practices under the current administration. The Equal Employment Opportunity Commission (EEOC) has increased its focus on both traditional and reverse discrimination claims tied to DEI programs. Courts therefore may still scrutinize whether the certification was in fact material to the government’s payment decision in any given case.

Notably, EO also seeks to make it easier for https://corporatenex.com/talent-management-strategies-for-hr-leaders.html?noamp=mobile the government to establish liability under the FCA by building into the contract an explicit representation that the contractor or subcontractor’s certification was material to the government’s payment decision—a key element required for FCA liability. Additionally, contractors are required to suspend any subcontractors who fail to comply with the EO, and noncompliance can result in cancellation, termination, or suspension of the contract, as well as suspension or debarment—making an entity ineligible for future government contracts. We also examine how disclosure practices are changing across the S&P 500, with a focus on the financial sector and the new terminology companies are now adopting in place of DEI.