O Equity vs. LIABILITY WHAT EMPLOYERS SHOULD KNOW ABOUT NAVIGATING WORKPLACE DEI IN A CONTINUOUSLY CHANGING LANDSCAPE BY JOEY K. WRIGHT, AMUNDSEN DAVIS LLC Over the past decade, diversity, equity and inclusion initiatives have become part of corporate culture. Employers began implementing hiring practices, training programs and internal policies aimed at promoting representation and equal treatment of minorities in all facets of employment. However, as a result of changes to the policy and legal landscape, these DEI initiatives have been under attack. Critics of these initiatives contend that DEI practices and policies aimed at curbing discrimination are, in fact, discriminatory themselves. In 2023, the U.S. Supreme Court found that race-conscious affirmative action (using racial preferences in the college admissions process) by higher education institutions that accept federal funding violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.1 In January 2025, President Donald Trump eliminated DEI programs across the federal government when he signed Executive Order 14173, entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”2 EO 14173 also encourages the private sector to end “illegal discrimination and preferences, including DEI.”3 Further, in January 2025, Indiana Gov. Mike Braun signed Executive Order 25-14, entitled “Ensuring All Hoosiers Have Equality of Opportunity by Eliminating DEI in State Government.”4 Gov. Braun’s EO 25-14 prohibits all DEI efforts in state government. Because of these shifts in policy and the legal landscape, employers face a challenging paradox. Those who continue to promote DEI efforts are confronted with potential legal risks, while those companies rolling programs back risk possible reputational harm and public backlash.5 In light of these competing threats, private employers seeking to maintain some form of DEI must take earnest and intentional steps to re-evaluate their policies and practices to ensure compliance and limit legal risks. Guidance From the EEOC and DOJ In March 2025, the U.S. Equal Employment Opportunity Commission and U.S. Department of Justice issued guidance outlining when a DEI initiative, policy or practice may be unlawful under Title VII. The agencies issued a joint one-page technical assistance document entitled “What To Do If You Experience Discrimination Related to DEI at Work”6 and an EEOC technical assistance document entitled “What HUMAN RESOURCES Those who continue to promote DEI efforts are confronted with potential legal risks, while those companies rolling programs back risk possible reputational harm and public backlash. “ 26 HOOSIERBANKER
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