If you’ve felt the legal ground shifting under your diversity, equity, and inclusion (DEI) initiatives over the past year, you’re not alone.
The implementation of DEI initiatives has provoked a large political and cultural backlash. Critics argue that considering identity factors can lead to “reverse discrimination,” where a more “qualified” candidate is passed over for someone from an underrepresented group. Supporters argue that when workplaces commit to a more inclusive workplace, employees benefit from diverse perspectives, equal access, and creates a sense of belonging. This can lead to improved moral, innovation, problem-solving, a wider consumer base, and overall business success.
Beginning January 2025. the Trump Administration issued a series of executive orders targeting DEI initiatives, both in the public and private sectors. This has also led to state-level legislation limiting the teaching of topics related to race, gender, racism, and privilege, such as Florida’s “Stop WOKE Act” and the Supreme Court’s 2023 ruling against race-based affirmative action in college admissions (Students for Fair Admissions, Inc. v. President and Fellows of Harvard College), which has implications for workplace DEI programs.
While the executive orders have some power, it is important to note that both equal opportunity and antidiscrimination remain a part of the U.S. Constitution and federal civil rights laws. Many employers are concerned they may be targeted if they continue their DEI initiatives, however they must also remain compliant with the law. The message from the courts is not to completely abandon positive hiring practices. The goal is to move away from certain practices that can be interpreted as discriminatory, and focus on designing systems that eliminate bias and create systems with equitable access.
The History of DEI
The origin of DEI may be traced back to the Civil Rights movement. This movement fought against legalized segregation and racial discrimination. In 1961, President John F. Kennedy issued an executive order, which affirmed the government’s commitment to equal opportunity for all qualified persons, and to take positive action to strengthen these efforts. This became known as affirmative action.
Affirmative Action expanded under President Lyndon B. Johnson’s administration, through the passage of the Civil Rights Act of 1964. Title VII of the Act created the Equal Employment Opportunity Commission (EEOC), which enforces laws that prohibit discrimination in hiring, promoting, firing, wages, and all other employment actions.
Since the 1970s, the movement expanded beyond racial issues and gender inequality to include individuals with disabilities, religious identity, and members the LGBTQ+ community. Diversity training programs began to address different cultures in the workplace, how to recognize unconscious bias, and how to prevent harassment against protected classes, e.g., sexual harassment. This expansion culminated in the evolution of the term “affirmative action” to diversity, equity and inclusion (DEI).
What is DEI?
So, what does diversity, equity and inclusion (DEI) mean? DEI is a framework aimed at creating fair access and outcomes for people from all backgrounds, particularly those from groups that have been historically excluded or underrepresented. What DEI does NOT do is benefit only a certain group of people, require the hiring of unqualified candidates to meet a quota, or discriminate against those who are not a member of a protected class.
If you are on social media, you may have seen a graphic similar to this one from Inclusion Solutions floating around:
Diversity: The presence and participation of people from all backgrounds. Typically, this includes gender, race, disability, and sexual orientation. Diversity, although great, cannot work alone. In frame 1, we see three individuals watching a baseball game. They are each provided a crate; however, they are all not able to access the game due to their diverse heights.
Equity: Ensuring fair treatment, access, and opportunity by addressing historical and systemic barriers. (This is different from equality, which means giving everyone the same thing). Frame 2 demonstrates that while everyone can gain access by simply increasing the number of crates, based on the needs of the individual, it still does not address the systemic barrier of the fence.
Inclusion: A sense of belonging where all feel respected, valued and able to fully participate. This may involve removing systemic barriers and biases that prevent individuals from being included. Frame 3 illustrates that if we simply change the type of fence, everyone can enjoy the game with no barriers.
How should we move forward?
1. Stay informed-While it may be tempting to follow every detail of this ever-evolving topic, the goal is to stay engaged without becoming overwhelmed. Get your information about legal and policy changes from official, reliable sources, such as the EEOC or the Society for Human Resources (SHRM) website. Base your decisions on fully vetted information.
2. Rely on data – Simple metrics can identify an objective, defensible basis for action. Look at quantitative and qualitative data to identify any processes that may be perceived as biased, such as recruitment, retention, promotions, or compensation.
3. Focus on targeted strategies based on the data
- Recruitment: Audit job postings and descriptions to ensure the language is inclusive. Use skill-based assessments and structured interviews to reduce bias in the hiring process.
- Retention: Focus more on targeted strategies to retain employees rather than targeted hiring practices. Exit interviews, leadership development, and clear and transparent communication are widely underutilized tools that are unbiased.
- Promotions: Create clear, transparent criteria for advancement to ensure all employees have equal access to advance.
- Pay: Conduct regular pay equity audits to identify and correct disparities.
4. Conduct a Legal Review. Partner with your legal counsel or human resources consulting firm to review your current policies and procedures to ensure your organization is compliant.
The future of DEI is not about abandoning the reasons why you initially invested in those initiatives. The goal is to integrate strategies into the workplace that are legally compliant, yet promote equal opportunities for all. By focusing on providing fully equitable opportunities through focused strategies, you can build a stronger, and truly inclusive organization.
For additional information on the future of diversity, equity, and inclusion in the workplace, please contact us at www.newfocushr.com.
Written By: Imani Murphy, MSM, SHRM-SCP
Senior HR Consultant
09/29/2025
Sources:
- Equal Employment Opportunity Commission: 60th Anniversary of Title VII of the Civil Rights Act of 1964 | U.S. Equal Employment Opportunity Commission
- Society for Human Resources Management (SHRM): https://www.shrm.org/topics-tools/employment-law-compliance/eeoc-to-dismantle-identity-politics-after-supreme-court-ruling
- Florida Department of Education: https://www.fldoe.org/newsroom/latest-news/florida-department-of-education-statement-on-usdoe-directive-to-end-racial-preferences-in-education.stml
- Supreme Court strikes down affirmative action programs in college admissions – SCOTUSblog
- Inclusion Solutions: Equity vs. Equality: Eliminating Opportunity Gaps in Education | The Inclusion Solution
