A recent CNN headline said: “Judge blocks Trump’s order targeting DEI programs.”  If you read social media, you see similar descriptions about the debate over Diversity, Equity, & Inclusion (DEI) programs.  Some support the Trump executive orders, while others praise the judge’s order that blocked Trump’s orders. While attention getting, the CNN headline was not completely accurate.

Before describing why the CNN headline was not 100% accurate and what businesses and employees need to know about the court’s order, let us review the history that has led us to DEI.

The 14^th amendment of the constitution guarantees “Equal Protection” under the law.  At first, that allowed Congress to pass laws against racial discrimination and outlawed laws that fostered discrimination.  As time passed, Equal Protection applied to all races in America, not just African Americans.  Today, Equal Protection applies to gender too.

In the 1970’s, colleges began to use race as an admission criterion.  Back then, the Supreme Court said that such “affirmative action” was okay because using race as one factor among many did not violate Equal Protection, while, on the other hand, racial quotas did.  (Regents of the University of California v. Bakke, 438 U.S. 265.)  More recently, the Supreme Court changed its policy and said that race cannot be used as an admissions criterion and that affirmative action is not okay.  (Students for Fair Admissions v. Harvard, 600 U.S. 181.)

Around the time that affirmative action suffered the Harvard case loss, DEI was born.  Its supporters focused on making the workplace fair for everyone but without quotas or affirmative action.  Those who do not support DEI argue that those programs can still violate the Equal Protection clause by favoring certain groups over others.

Trump’s order declares: “Americans deserve a government committed to serving every person with equal dignity and respect . . .”  Apparently, he believes DEI does not do that.  Regardless, the court blocked his orders because the judge believed that the orders did not clearly explain to government contractors and grant recipients what they had to do to comply, and they violated the first amendment.  The judge’s order also prevents the executive branch from executing at least part of the Trump orders, but it does not prevent anti-DEI forces from all action.  That is why the CNN headline was not completely accurate.

Business may still find itself vulnerable to federal agency investigations under federal civil rights laws, and employee lawsuits based on civil rights violations ostensibly caused by DEI programs.  Further, the judge’s order will not prevent the Department of Justice, federal agencies, or state Attorney Generals from issuing letters and filing lawsuits, based on civil rights statutes, because those laws exist outside of the Trump executive orders.

For many businesses, the DEI landscape could be perilous.  Before deciding what to do with a present DEI program, businesses should contact an employment lawyer who can help them analyze the complexities of DEI programs and the possible negative ramifications that they may have.  Of course, businesses may need to balance those things against the benefits that a sound DEI program may provide.

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