Legal experts warn that Trump’s anti-DEI agenda is pushing companies to gut programs that actually help them comply with longstanding anti-discrimination laws.
This article was originally published by The Conversation.
Since returning to office, President Donald Trump and his administration have waged a war on diversity, equity and inclusion efforts, including those of private businesses across the country.
Trump fired the first shot on Jan. 21, 2025—his first full day back in office—when he signed an executive order that denounced DEI as “immoral” and “illegal discrimination.” The order claimed that, under such policies, “hardworking Americans” were being “shut out of opportunities because of their race or sex.”
A week later, Trump dismissed two Democratic commissioners of the Equal Employment Opportunity Commission, the federal agency that helps enforce workplace anti-discrimination laws. Because these officials were forced out years before their terms expired, their firing was arguably illegal. But it allowed Trump to dramatically shift the commission’s focus.
Andrea Lucas, named by Trump to be the agency’s acting chair, quickly announced a commitment to what she described as “rooting out unlawful DEI-motivated race and sex discrimination.”
Since then, there’s been a steady drumbeat of anti-DEI statements from the administration and its supporters. But these proclamations fail to explain what is illegal about so-called “illegal DEI.” As professors and workplace law experts, we recognize that companies may have trouble distinguishing political rhetoric from legal obligations. That’s why we recently co-founded The Legal DEI Project, a free resource providing clear information on DEI policies and practices and the law.
Chilling Effect
The Trump administration’s statements about DEI are generally broad in scope and short on details, leading to an overall chilling effect on private businesses.
For example, one of Trump’s executive orders suggests, without evidence, that corporations and other large employers have replaced a commitment to “hard work” with an “unlawful, corrosive and pernicious identity-based spoils system.” It then instructs federal agencies to compile lists of the businesses and other institutions they believe are the “most egregious and discriminatory DEI practitioners” and pursue compliance investigations against them.
Some employers have responded to this threat by aggressively slashing their programs and personnel dedicated to ensuring fairness at work. That reaction is understandable. But it is also deeply mistaken, as many tried-and-true practices that effectively reduce workplace discrimination are getting caught in a dragnet of anti-DEI fever.
Employers who act rashly by simply abandoning all efforts related to diversity and inclusion may actually increase rather than decrease their risk of being sued by workers who believe they have experienced discrimination – the overwhelming majority of whom are members of racial minority groups rather than white workers.
Employers could also miss out on the benefits that can flow from diverse workforces, such as higher profits, innovation and creativity.
DEI Isn’t Illegal, But Discrimination Is
DEI is a generic, umbrella term used to describe organizational efforts to treat all people fairly. While such initiatives have been around for decades, the DEI label became common only in the past decade as the Black Lives Matter and #MeToo movements highlighted pervasive discrimination and inequality in U.S. society.
The term, however, has no legal meaning. DEI is instead a collection of aspirational objectives used as corporate or institutional branding, which Trump has turned into a straw man by repeatedly condemning what he alleges is “illegal DEI.”
Workplaces are governed by anti-discrimination laws. Those laws prohibit employers from making hiring or other personnel decisions based on workers’ protected characteristics such as race, sex or religion, just as they did before DEI programs became popular.
This means that employers generally cannot implement preferences for, or limit opportunities to, employees based on these traits. If DEI programs include improper preferences, those preferences were illegal before Trump took office. They should be discontinued.
Importantly, U.S. employment law requires employers to do more than just punish individual employees who make biased decisions or harass co-workers. Employers must also, at a minimum, take proactive steps to prevent harassment and reasonably accommodate workers with qualifying disabilities, pregnancy-related limitations and religious needs.
Employers must also make sure that workplace policies, such as how duties are assigned and how pay is set, are fair and unbiased.
Congress, Not the President, Creates Laws
Multiple laws enacted by Congress, from the 1964 Civil Rights Act to the 2022 Pregnant Workers Fairness Act, and decades of court decisions interpreting those laws, have established the rules that govern the workplace today. The Trump administration has no authority to single-handedly change these laws – or the regulations implementing them – just by issuing executive orders.
What those orders primarily do is set presidential agendas. Presidents use them to direct some actions of the federal government and its contractors, but executive orders do not directly apply to most private companies, nonprofits or other nongovernmental employers.
Although the EEOC may follow Trump’s directives, it cannot change or ignore federal laws. In fact, recent EEOC actions – such as spontaneously demanding information from law firms about their diversity initiatives – that arguably exceed its authority are being challenged in court.
Employees, Not the Government, File Most Complaints
When employers attempt to conform to the Trump administration’s political goals by removing any guardrails they’ve put in place to prevent discrimination, they put themselves at greater legal risk. That is because most discrimination lawsuits are brought by employees, not the federal government.
On average, individual employees file 60,000 to 90,000 EEOC charges annually and tens of thousands of lawsuits arising from those charges in federal and state court. By comparison, the EEOC has brought fewer than 150 cases annually in recent years.
While the EEOC’s attack on DEI programs may encourage more white workers to file discrimination claims, the data shows that most actionable discrimination continues to be experienced by women and members of racial minority groups, not by white people.
And that problem is likely to be exacerbated by employers dismantling their DEI programs.
Not a Zero-Sum Game
Just as employing a diverse workforce is perfectly legal, so too is taking action to value diverse perspectives and leadership.
Adopting inclusive recruitment strategies, structuring decision-making practices to be more objective and assessing job descriptions to focus on tasks and qualifications can all help reduce the influence of racial, gender, religious or other biases in hiring and promotion. Offering training and mentoring, providing support to meet the needs of all workers and creating environments that promote excellence and belonging can ensure equal access to opportunities for all employees.
Adopting such human resource practices also makes good business sense. When properly executed, they reduce the risk of workplace discrimination lawsuits and liability by flagging any potential discrimination and allowing employers to proactively address it.
Anti-discrimination law has always required employers to judge all workers fairly and on the basis of their merit. Making changes that aim to reduce bias against some employees is not an act of discrimination against white men or others who do not belong to a group that has historically experienced discrimination.
Those changes instead help employers comply with anti-discrimination laws—the same laws that have governed U.S. workplaces for over 60 years and continue to do so today.
Rachel Arnow-Richman teaches and publishes in the areas of employment law and contracts. She is widely known for her work on the #MeToo movement and the rights of accused harassers, noncompete reform and labor mobility issues, and for a series of articles proposing mandatory advance notice and severance pay for terminated employees. She participated in drafting the Uniform Law Commission’s recently passed Uniform Restrictive Employment Agreement Act and is a past chair of both the Labor & Employment Law Section and the Contracts Section of the American Association of Law Schools.
Stephanie Bornstein teaches and writes in the areas of employment and labor law, antidiscrimination law and procedural law. Her scholarship focuses on legal and administrative strategies to reduce racial and gender inequality in the workplace and ensure access to justice in civil litigation. Current projects develop new approaches to close racial and gender pay gaps, challenge the impact of forced arbitration on structural legal change and foster public/private partnerships to better enforce public law. In 2019-2020, Professor Bornstein served as the Chair of the AALS Section on Employment Discrimination Law. Since 2020, she has served as Co-Director of the Pay Equity & Living Wage Project of the Center for Comparative Equality and Anti-Discrimination Law at U.C. Berkeley Law School.
Tristin Green specializes in laws affecting inequality, especially employment discrimination law. She brings to her teaching and her scholarship a background in journalism and sociology and an interest in human relations and in the ways in which laws and contexts shape those relations. Her research and teaching interests include feminist legal theory, employment discrimination, race, gender and queer theory, status identity and emotions, torts, and administrative structures, including wealth transfer systems and civil procedure.
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