Are Workplace DEI Programs Legal?

Workplace diversity, equity, and inclusion (DEI) programs have become increasingly controversial in recent years, with some employers rolling back their DEI initiatives due to increased scrutiny and others maintaining that DEI is essential to their business success.

But what does the law say about DEI? Recent social and political debates aside, well-designed DEI programs have long been legal under federal laws prohibiting employment discrimination. To comply with these laws, employers generally must ensure that their DEI initiatives focus on creating fair employment processes for all job applicants and employees.

What Are Workplace DEI Programs?

Some of the controversy surrounding DEI stems from confusion about what it is. DEI is not just one thing. It's an umbrella term that encompasses a variety of different workplace policies and practices with a common goal. Effective DEI initiatives aim to ensure that everyone has an equal opportunity to succeed in the workplace, regardless of background.

Properly designed and implemented DEI programs help prevent discrimination in hiring, promotion, and workplace culture. Examples of these initiatives include:

• recruiting from a large pool of applicants with a wide variety of backgrounds
• ensuring that job descriptions and AI hiring tools aren't incorporating bias
• training employees in topics such as harassment, unconscious bias, and disability awareness
• ensuring equal access to professional development, and
• instituting clear procedures for reporting discrimination and harassment.

Brief History of Employer Diversity Programs

While they go by various names—from equal employment opportunity to DEI—diversity and antidiscrimination programs have been a part of the American employment landscape for decades. They have their roots in Title VII of the Civil Rights Act of 1964, which makes it unlawful for employers to discriminate based on race, color, religion, sex, and national origin.

The 2020 murder of George Floyd and the resulting racial reckoning led to an increase in workplace DEI programs, followed in more recent years by a DEI backlash. In 2023, the U.S. Supreme Court banned affirmative action in college admissions, holding in Students for Fair Admissions v. Harvard (600 U.S. 181) that considering race as a factor in admissions decisions violated the Equal Protection Clause of the Fourteenth Amendment. Although the decision did not apply to employer DEI programs, it nonetheless resulted in a spate of lawsuits challenging workplace DEI.

Then, in January 2025, the Trump administration issued a series of Executive Orders seeking to eliminate what it called "illegal DEI" in the federal government and the public and private sector. The Executive Order applicable to workplace DEI revoked previous federal antidiscrimination policies. It directed federal agencies to identify up to nine large employers for investigations into their DEI practices. It also required federal officials to devise additional strategies for ending DEI in the private sector. In the months leading up to and following the order, several large companies, including Amazon, Target, Meta, and McDonald's, have scaled back or dropped their DEI programs.

The Legal Basis for DEI Programs

DEI programs help employers comply with longstanding antidiscrimination laws.

Workplace discrimination is illegal under federal and state law. Under Title VII, it's unlawful for employers to discriminate based on race, color, religion, national origin, and sex (including pregnancy, sexual orientation, and gender identity). The Americans with Disabilities Act (ADA) prohibits discrimination based on disability. Other federal laws make it unlawful to discriminate on the basis of age and genetic information. In addition, every state has its own laws prohibiting discrimination in the workplace.

These laws against employment discrimination generally apply regardless of whether the person discriminated against belongs to a majority group (such as white or straight employees or job applicants) or a protected group (such as Black or LGBTQ employees or job applicants).

To avoid liability under these laws, employers must take steps to identify and address discrimination before it happens. Properly designed and implemented DEI programs help them do that.

The Difference Between Legal DEI Programs and Illegal Discrimination

Some critics argue that all DEI programs are illegal, claiming that they give preferential treatment to people of color, women, and other disadvantaged groups. This argument inaccurately equates illegal discrimination and lawful DEI programs.

Preferential treatment has always been prohibited under Title VII, except in very limited circumstances. Lawful DEI initiatives focus on creating fair employment processes, rather than on conferring advantages to some groups of people and not others.

Legal DEI Initiatives

An example of a legal DEI initiative might involve a tech company expanding recruitment efforts to include not only Ivy League universities, but also state colleges or historically Black colleges and universities (HBCU). Expanding the pool of job applicants in this way might allow highly qualified Black or Latina women to apply for a position they wouldn't have had the opportunity to apply for otherwise—as well as giving the company access to qualified candidates it might not otherwise have known about. This type of initiative does not require the company to hire the women of color; rather, it creates a process that expands employment opportunities in tech.

In another example, a Colorado court recently found that DEI trainings that include some allegedly negative generalizations about white people do not constitute illegal discrimination against a white employee. The fact that the plaintiff was offended and felt discriminated against was not sufficient to create a hostile work environment under Title VII. The court noted that the DEI trainings could theoretically contribute to workplace harassment and discrimination, but the plaintiff had not shown that they did. (Young v. Colorado Dep't of Corrections, 94 F.4th 1242 (10th Cir. 2024).)

While preferential treatment is generally prohibited under Title VII, some race- or gender-based workplace affirmative action plans may be considered legal if they meet specific criteria, including that they serve a remedial purpose, are narrowly tailored to correct a statistical imbalance, are temporary, and do not unnecessarily harm those who aren't recipients of the preference.

Illegal Discrimination

On the other hand, courts are more likely to find illegal discrimination if an employer has a hiring quota requiring it to hire a specific percentage of employees of a certain race. Similarly, a policy tying manager bonuses to hiring more diverse candidates is more likely to be considered unlawful, as is tiebreaker decision-making requiring that an employer hire candidates in protected groups over equally qualified candidates in majority groups.

In one recent case, a North Carolina jury found illegal discrimination when a company fired a white man and replaced him with a Black woman. The evidence showed that the company had a broad DEI program that included awarding bonuses to executives who met specific quotas for hiring people of color. In addition, the company did not have a clear business reason for firing the plaintiff. (Duvall v. Novant Health, Inc., 95 F.4th 778 (4th Cir. 2024).)

Proving a Discrimination Claim

While employment discrimination is illegal regardless of whether an employee belongs to a majority or protected group, there is some disagreement among the courts over whether people in majority groups have to meet a higher standard than people in minority groups when bringing a federal discrimination claim. Such a standard would make it harder for people in majority groups to prove their discrimination claims.

Out of 12 federal circuits, five have found that a higher standard applies, and seven have not—instead applying the same standard regardless of whether a plaintiff belongs to a majority or protected group. The Supreme Court is expected to resolve this circuit split in Summer 2025, in a case brought by a straight woman alleging discrimination in favor of gay employees. (See Ames v. Ohio Dep't of Youth Servs., 87 F.4th 822 (6th Cir. 2023).)

Does the Recent Executive Order or the Supreme Court's Affirmative Action Decision Change the Law on Workplace DEI Programs?

The recent DEI Executive Order and the Supreme Court decision in Students for Fair Admissions v. Harvard (the "Harvard case") do not change the law on private sector workplace DEI programs. However, they do indicate a change in the federal government's policies and enforcement priorities, as well as signaling the Supreme Court's skepticism towards diversity initiatives.

The Executive Order

Executive orders can't change existing law. They can't declare some or all DEI practices illegal. Only Congress can make laws, and only federal courts can decide whether a specific diversity practice is legal under existing federal laws. This is fundamental to the democratic system of checks and balances, which ensures that no one branch of government is more powerful than another. The Constitution establishes a separation of powers between the legislative branch, which makes the laws; the executive branch, which enforces the laws; and the judicial branch, which interprets the laws.

While executive orders can't create new laws, they can tell government agencies how to implement existing laws. This can affect how the government prioritizes enforcement. For example, by revoking a Johnson administration Executive Order governing federal contractors, the recent Trump administration Executive Order can eliminate certain affirmative action requirements for federal contractors (but can't eliminate their lawful DEI initiatives).

In addition, by characterizing DEI programs as generally "illegal" and directing federal officials to identify certain employers as targets for civil investigations, the Executive Order—if found to be legal—could cause federal officials to treat lawful diversity initiatives as illegal discrimination.

In response to a lawsuit challenging the constitutionality of the recent Executive Order, a federal district court issued an injunction in March 2025 temporarily blocking some parts of the Order. Ultimately, it will be up to the courts to decide the legality of the Order.

The Harvard Case

The Supreme Court's decision in the Harvard case applies only to admissions practices at institutions of higher education that receive federal funding. It does not directly apply to private sector employers.

The Harvard case was decided under the Equal Protection Clause of the Fourteenth Amendment, which applies only to federal and state actors, and Title VI of the Civil Rights Act, which applies only to recipients of federal funding. As a result, the case does not change the law regarding private sector workplace DEI.

However, two Supreme Court Justices (Thomas and Gorsuch) indicated in their concurring opinions that the legal reasoning relevant to federally funded universities could apply equally to private employers. Justice Gorsuch noted that the language of Title VI and Title VII is almost the same, and both prohibit race-based decision making. To the extent a workplace DEI initiative constitutes race- or gender-based affirmative action rather than a process to ensure equal employment opportunities, it could be at risk under future Supreme Court decisions.

In addition, although the Harvard case does not apply to private sector DEI initiatives (or lawful higher education DEI initiatives), the case has resulted in a slew of lawsuits challenging corporate DEI and at least a dozen new state laws restricting or banning college DEI initiatives.

Contact an Attorney

Employers who wish to ensure that their DEI initiatives comply with federal and state laws should contact an employment attorney. An experienced attorney can assist employers in reviewing their DEI plans, monitoring changing laws, and implementing best practices for effective, lawful DEI programs.