DEI returned to the nation-wide conversation table when in June 2023, Supreme Court effectively ended race-based affirmative action in higher education in the Students for Fair Admissions (SFFA) case. However, as Justice Sotomayor pointed out in her dissent, “Diversity is now a fundamental American value, housed in our varied and multicultural community that only continues to grow.” Too many people in too many major institutions, including corporations, government, academia and the military, are committed to DEI for it to disappear.

Under a Trump presidency that is focused on dismantling institutional DEI programs, it is essential for institutions to be tactical about their approach to diversity and inclusion. A DEI program is most risky when it:

  1. Confers a preference, meaning that some individuals are treated more favorably than others
  2. The preference is given to members of a legally protected group, such as groups defined by race, color, religion, national origin, and sex (including sexual orientation and gender identity.)
  3. The preference relates to a palpable benefit, such as a job, a promotion, a pay raise, a work assignment, or access to training and development opportunities.

Examples include:

  1. Hiring quotas (making sure at least 50% of incoming hires are women)
  2. Tiebreaker decision-making (when choosing between two equally strong candidates, and one is white and one is a person of color, picking the person of color on that basis)
  3. Group-specific internships and fellowships (creating an internship that limits eligibility to Black and Latino students)
  4. Tying manager compensation to diversity goals (providing bonuses to managers that hire more women & people of color)
  5. Employee training that includes race or gender-based stereotyping
  6. Affinity group policies that exclude employees based on protected characteristics
  7. Supplier diversity initiatives that mandate racial or gender-based quotas
  8. AI-driven hiring or evaluation tools that unintentionally embed or reinforce bias
  9. Policies that limit speech or expression in a manner perceived as restricting certain viewpoints

Many will read this and rightly point out that these policies do not involve a “preference,” but rather compensate for biases that have systematically deprived certain groups of opportunities. Unfortunately, current federal rulemaking and Supreme Court rulings prefer a more conservative approach.

Tips for Reframing Equal-Opportunity Programming

The key is to ensure you are avoiding preferences, avoiding protected groups, and/or avoiding palpable benefits.

  1. Avoid Preferences: Focus on “leveling” over “lifting.”

    1. Rather than giving “preference” to some groups, organizations can create diversity programming that is identity-neutral but removes bias from the workplace. The idea here is not to “lift” certain groups above others, but to “level” the playing field for everyone.
    2. Examples of this include removing stereotypical language from employee evaluation processes; reviewing employee benefits policies to ensure they are being applied equally; and creating standard recruitment & promotion processes with clear, transparent, merit-based criteria

  2. Avoid Protected Groups:

    1. Open equity initiatives to all. Some organizations limit participation in DEI programming to particular cohorts or caucuses among staff. For example, organizations may offer diversity fellowship programs that limit eligibility to members of underrepresented groups. Instead of limiting participation in DEI programs to particular groups, organizations can open participation to people of all demographic backgrounds with a demonstrated commitment to diversity and inclusion.
    2. Consider a candidate’s identity only where it speaks to their individual character. In the SFFA decision, the court noted that while universities can no longer give a bump to candidates based on their race, they can still consider “an applicant’s discussion of how race affected [their] life, be it through discrimination, inspiration, or otherwise.” This means that, while an employer can’t make a promotion based on race, they could invite candidates for promotion to submit an essay describing how their race and other aspects of their identity have affected their lives, and then consider those individual experiences when deciding which candidates display resilience, determination, or other leadership qualities.
    3. Shift from protected classes to other areas of unity. Employers can shift cohorts based on protected classes to cohorts that represent other aspects of diversity. For example, an organization could adopt a program that advances socioeconomic diversity, considering that socioeconomic status is not a protected attribute in federal anti-discrimination law. This strategy is sound as long as the new cohort is not used as a proxy for a protected one.

  3. Avoid Palpable Benefits

    1. To reduce risk, organizations can build programming that fosters a more diverse and inclusive workplace culture overall, but do not directly affect the benefits or employment opportunities of individual workers. For example, businesses can:
    2. Conduct employee education or training on topics such as bias, allyship, or inclusive leadership
    3. Create a more physically inclusive office environment through things like all-gender bathrooms, nursing homes, or child-care facilities
    4. Conduct outreach to a broader range of colleges to attract a more diverse candidate pool
    5. Support community organizations focused on DEI issues, like through pro bono work or philanthropy
    6. Review certain workplace policies

Other important steps include:

  1. Conduct an attorney-client privileged legal review of DEI programs and related training material with an attorney
  2. Ensure hiring, promotion, and compensation decisions are transparent and well-documented
  3. Reframe DEI efforts to emphasize workplace culture, leadership development, and equitable access to opportunities as sustainable business practices rather than preferential treatment
  4. Recruiting – consider socioeconomic and geographic diversity as other potential factors aligned with underrepresentation in your outreach strategy. Continue reaching out to diverse sources for applicants including high schools in diverse communities, HBCUs, and organizations that support people in underrepresented groups.
  5. Hiring – implement objective, merit-based employment practices that emphasize equal opportunity for all candidates
  6. Be careful about race-based goals: quotas have always been illegal, but general statements such as “being representative of the community” or “achieving a higher percentage of diversity among the management team” may also be challenged – work with legal counsel on this, but they key is to avoid the interpretation that you prefer specific candidates due to their protected class.
  7. DEI training – review your DEI content to ensure inclusion is highlighted as a tool to achieve your business objectives (like getting the most out of all employees) rather than promoting targets or quotas.
  8. Open Employee Resource Groups – make sure that membership guidelines are open to anyone interested in the topic and not limited by sex, race, or another protected category
  9. Don’t Make Assumptions – your DEI program should not include assumptions about groups of people (such as assumptions based on race or sex) or repeatedly offer stereotypes.

Written by Gabriel Neuman (he/him), GSBA Policy Counsel and Government Relations Manager

The information is intended to inform the GSBA community about legal and policy developments. Nothing in this post should be construed as legal advice or a legal opinion, and readers should not act upon the information contained in this article without seeking the advice of legal counsel.