My Q&A post on DEI.
Q: What is DEI?
A: DEI is the acronym for the term diversity, equity, and inclusion
Q: But what does DEI mean?
A: There is no legal definition for DEI, which makes it unreasonable for the development of laws that broadly apply to DEI, a vague concept that may be interpreted in myriad ways. One way DEI may be expressed by an organization is as a system of values, structures, policies, and practices to create an environment that allows for the diversity of the community served by an organization to be reflected by the diversity of leaders and employees of the organization in a manner that embraces their sense of belonging and increases the organization’s capacity to better address the needs of the entirety of its diverse community including those who have been previously excluded.
Q: What’s wrong with that?
There should be nothing wrong with that expression of DEI. But DEI has been framed by some politicians and others who prefer to marginalize certain groups to have more for themselves as something that opposes equality of opportunity. These critics claim that DEI unfairly treats white persons, particularly men, by creating more opportunities for others. They reject the fact that the creation of opportunity for others who have been historically and systemically excluded and disadvantaged is intended to make the playing field more equal. They reject the fact that injustices of the past persist in our structures, laws, customs, education, and thinking. And most of these critics do not reject DEI on an evidentiary basis; they reject it because it’s self-serving or seemingly self-serving. From a community-level perspective, DEI strengthens communities, and the positioning to create a more dominant caste always leads to its eventual fall.
Q: So, are all DEI initiatives lawful?
The lack of a legal definition of DEI and all of the rhetoric around what DEI means make this a difficult question to answer. There are some organizations that may intend to promote their legitimate DEI values doing so in unlawful ways. The most common example that comes to mind is hiring for a leader and using race as a qualifying or plus factor. Hiring based on race is illegal. An organization cannot limit its hiring to a BIPOC individual just as it cannot limit its hiring to a white individual. It cannot give preferential weight to a BIPOC candidate just as it cannot give preferential weight to a white candidate.
Another example of promoting legitimate DEI values in an unlawful way is by discriminating against any individual on the basis of race in the making or enforcing of contracts. See Anti-Discrimination Laws – Section 1981. Section 1981 of the Civil Rights Act of 1866 originated with the intent to protect previously enslaved Black individuals from discrimination immediately after the Civil War. However, in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976), the Supreme Court held that “Section 1981 prohibits racial discrimination in private employment against white persons as well as nonwhites.” It can be a fine line in determining whether a racial preference in a nonprofit’s activities that requires some return in value by a participant might constitute a violation of Section 1981 because the exchange of value fulfills the consideration requirement for a legal contract. This seems to have become the main point of legal attack by those who oppose DEI.
Q: Is there any guidance on what types of DEI activities are permissible?
The Attorneys General of Massachusetts, Illinois, Arizona, California, Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, and Vermont are issuing this Guidance to help businesses, nonprofits, and other organizations operating in our respective states understand the continued viability and important role of diversity, equity, inclusion, and accessibility efforts (sometimes referred to as “DEI” or “DEIA” initiatives) in creating and maintaining legally compliant and thriving workplaces.
Q: What about the executive orders?
Sigh. Yes, there are some executive orders attacking DEI, most notably the following two issued almost immediately after President Trump took office:
Ending Illegal Discrimination and Restoring Merit-based Opportunity, which includes the following section:
Sec. 3. Terminating Illegal Discrimination in the Federal Government. … The Office of Federal Contract Compliance Programs within the Department of Labor shall immediately cease: …
(C) Allowing or encouraging Federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin. [Note: This is not new law.]
Sec. 4. Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences. (a) The heads of all agencies, with the assistance of the Attorney General, shall take all appropriate action with respect to the operations of their agencies to advance in the private sector the policy of individual initiative, excellence, and hard work identified in section 2 of this order.
(b) To further inform and advise me so that my Administration may formulate appropriate and effective civil-rights policy, the Attorney General, within 120 days of this order, in consultation with the heads of relevant agencies and in coordination with the Director of OMB, shall submit a report to the Assistant to the President for Domestic Policy containing recommendations for enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI. The report shall contain a proposed strategic enforcement plan identifying:
(i) Key sectors of concern within each agency’s jurisdiction;
(ii) The most egregious and discriminatory DEI practitioners in each sector of concern;
(iii) A plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated “DEI” or otherwise) that constitute illegal discrimination or preferences. As a part of this plan, each agency shall identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars;
(iv) Other strategies to encourage the private sector to end illegal DEI discrimination and preferences and comply with all Federal civil-rights laws;
(v) Litigation that would be potentially appropriate for Federal lawsuits, intervention, or statements of interest; and
(vi) Potential regulatory action and sub-regulatory guidance.
Ending Radical and Wasteful Government DEI programs and Preferencing, which includes the following provisions:
Sec. 2. Implementation. (a) The Director of the Office of Management and Budget (OMB), assisted by the Attorney General and the Director of the Office of Personnel Management (OPM), shall coordinate the termination of all discriminatory programs, including illegal DEI and “diversity, equity, inclusion, and accessibility” (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear. …
(b) Each agency, department, or commission head, in consultation with the Attorney General, the Director of OMB, and the Director of OPM, as appropriate, shall take the following actions within sixty days of this order:
(i) terminate, to the maximum extent allowed by law, all DEI, DEIA, and “environmental justice” offices and positions (including but not limited to “Chief Diversity Officer” positions); all “equity action plans,” “equity” actions, initiatives, or programs, “equity-related” grants or contracts; and all DEI or DEIA performance requirements for employees, contractors, or grantees.
(ii) provide the Director of the OMB with a list of all: …
(C) Federal grantees who received Federal funding to provide or advance DEI, DEIA, or “environmental justice” programs, services, or activities since January 20, 2021.
Note, however, that the executive orders do not in and of themselves create new laws regarding what is lawful or unlawful regarding DEI-related practices and activities. These executive orders were so vague as to result in a federal judge’s issuance of a nationwide preliminary injunction partially preventing their enforcement. This injunction was lifted a few weeks later by the Fourth Circuit, relying on the argument that the executive orders only targeted DEI programs that violate existing federal civil rights laws. You can read more about these developments here (Block on Trump’s executive orders restricting DEI programs is lifted, NPR).
Q: Is there any other guidance from the federal government about illegal DEI?
On March 19, 2025, the EEOC and the DOJ released a joint one-page technical assistance document, What To Do If You Experience Discrimination Related to DEI at Work (“What to Do Doc”), and the EEOC released a longer technical assistance document, What You Should Know About DEI-Related Discrimination at Work (“FAQ Doc”). It may be important to note that (1) the EEOC lacks a sufficient number of Commissioners following President Trump’s unprecedented firing of two Commissioners, leaving only Acting Chair Andrea Lucas, a Republican, and Commissioner Kolpana Kotagal, a Democrat; and (2) the two technical assistance documents are able to be issued solely under the Acting Chair’s authority.
The What to Do Doc states employment laws that are essential to know, but it also perniciously slips in the following possibilities as if they were very likely violations of employment law for which an employee can file a charge of discrimination with the EEOC (emphasis added):
- Prohibited conduct may include:
- Limiting membership in workplace groups, such as Employee Resource Groups (ERG) or other employee affinity groups, to certain protected groups
- Separating employees into groups based on race, sex, or another protected characteristic when administering DEI or other trainings, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources
- Depending on the facts, DEI training may give rise to a colorable hostile work environment claim.
- Title VII prohibits retaliation by an employer because an individual has engaged in protected activity under the statute, such as objecting to or opposing employment discrimination related to DEI, participating in employer or EEOC investigations, or filing an EEOC charge. Reasonable opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII.
The FAQ Doc is troubling in the same it similarly frames activities that are generally lawful (emphasis added):
- 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.
- 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
- Depending on the facts, an employee may be able to plausibly allege or prove that a diversity or other DEI-related training created a hostile work environment by pleading or showing that the training was discriminatory in content, application, or context.
- Title VII prohibits employers and other “covered entities” from retaliating because an individual has engaged in protected activity under the statute. 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. Depending on the facts, protected opposition could include opposing unlawful employment discrimination related to an employer policy or practice labeled as “DEI.”.
Of course, almost all activities may or can be illegal depending on the facts. For example, reprimanding an employee for supporting DEI may be illegal (if you violate their First Amendment rights); promoting a white male employee can be illegal (if you used race in your decision-making); invoicing a client may illegal (if you use unlawful coercion to demand payment). So, while the two documents include helpful information about the law, the intent of releasing these documents appears to be propaganda to shape behavior with implied threats. And it’s dismaying to see organizations with massive power and wealth capitulate to such federal actions.
For additional information on these documents, see EEOC Issues New Technical Assistance on “DEI-Related Discrimination” (Seyfarth Shaw); EEOC and DOJ Release Guidance on “Illegal DEI” (Berkshire).
Q: Should we stop referring to DEI on our website and public communications, including on the Form 990?
There isn’t a single right answer to this question, but there are a number of considerations worth reviewing throughout the organization:
- Are your organization’s DEI activities directly related to advancing its mission?
- Are your organization’s DEI activities directly related to advancing its core values (and not just your personal values)?
- How do your organization’s DEI activities favorably impact the communities it serves?
- How do your organization’s DEI activities favorably impact employee satisfaction, retention, and recruitment?
- How do your organization’s DEI activities impact your donors and funders?
- Have you taken steps to reasonably assess the threat to the organization if it continues to maintain all of its DEI structures, policies, activities, and communications? Make sure you confer with knowledgeable parties in making this assessment, particularly if you rely upon federal grant or contract funds.
- Have you taken steps to reasonably assess the threat to the organization if it takes steps to change its DEI structures, policies, activities, and communications? This may require scenario planning based on what changes are being contemplated. What an organization’s leaders should not fail to consider is the threat of anti-DEI initiatives if unchecked by a strong, unified resistance? The signs so far are that the scope, the intensity, and the severity of these anti-DEI initiatives will increase even if questionable.
- Having taken all of these things in consideration, what steps would be reasonable in mitigating the risks of government intrusion?
Q: Okay, but do you have any tips?
With the caveat that my tips for sure don’t apply to all organizations, and I’m going to assume, just for this purpose, that there’s no federal or other funding at stake, here are a few:
- Continue moving forward on your equity journey (double down if you can) if you have determined that is in the best interests of the organization based on its mission, vision, core values, beneficiaries, and ecosystem, which may need to be thought of very expansively under this political and legal environment where so much is at stake and at risk.
- Carefully consider eliminating risks of unfair government intrusion through your choice of words on certain communications (e.g., avoid some of the targeted words and phrases on your Form 990 and website, but emphasize your DEI commitments using common words and phrases that may be better understood in your private circles who trust you are communicating through an implicit DEI lens like “fair” and “just”). But, if true, you’ll want to communicate to your stakeholders that your commitment to DEI principles and values has not diminished.
- When engaging in lawful charitable programs limiting participation to one or more racial groups, avoid setting up the participation terms in the form of a contract. You may want to work with an attorney so that (1) certain requirements may be framed as descriptions of applicable law (e.g., participants are subject to all applicable laws, including with respect to use of charitable funds dedicated to the charitable purposes described in this document) rather than contractual provisions; and (2) certain expectations are framed as expectations or terms of participation rather than enforceable requirements.
- When grantmaking to an organization to support lawful charitable programs focused on benefiting one or more racial groups, avoid making such grants pursuant to a document using contractual language like “grant agreement,” “representations and warranties,” and “covenants.” You may want to work with an attorney so that (1) certain requirements may be framed as descriptions of applicable law (e.g., grant funds can only be spent for the following charitable purposes under applicable charitable trust laws) rather than contractual provisions.
- Collaborate and team-up with other organizations.
- Pay close attention to general compliance risks as it may be far easier and less controversial for a government agency to shut down your operations for failing to file a required form than for engaging in DEI activities.
- Provide grace to vulnerable organizations that are acting more conservatively than you might prefer. They may have other considerations that make sense why they don’t want to be on the front line of any attack. And note that an attack from a government agency may come through audits and subpoenas that could cripple a smaller organization even without any charge of wrongdoing. See, e.g., How Data Subpoenas and Online Harassment Are Silencing Many Nonprofits (Chronicle of Philanthropy)
Additional Resources and Outside Wisdom
Recent Executive Actions on Diversity, Equity, and Inclusion (DEI) (Congressional Research Service)
The Wrong Way to Manage Risk Under the New Administration (Karl Mill, Mill Law Center)
You Are Probably Wildly Underestimating How Many Americans Support DEI, New Study Shows (Jessica Stillman, Inc.)
Exclusive: 20% of Americans support boycott of firms aligning themselves with Trump agenda (Lauren Aratani, Guardian)
Purpose-Driven Board Leadership (BoardSource)