DEI is still legal: separating fact from political fear-mongering
There are so many misrepresentations about DEI right now.
Some are deliberately mischaracterizing DEI in order to justify its dismantling in favor of what amounts to white dominance and re-segregation.
Others are allowing misperceptions to fester because it plays to their fears and insecurities.
Even some who are strongly in favor of DEI are worried that it’s no longer legal.
At Co-Creating Inclusion, we are not lawyers but we have consulted with our lawyer and are agreed: Now is not the time to retreat - it’s the time to double down.
❗If you are horrified, dismayed and worried about what is going on, now is the time to lean into your values.❗
And the good news is we are actually seeing white folks who don’t usually talk about DEI speaking up in favor of it.
White folks at our client organizations are asking what they can do to push back on the idea that the values of diversity, equity, inclusion and belonging are a waste of time or harmful to white people.
They want to know how they can take the pressure off BIPOC and other marginalized folks from having to explain and defend these concepts.
They want to know how they can engage productively.
Here is what we suggest, especially for white folks who want to leverage their power to have these conversations:
⭐ Ask people to think carefully about what they’re really saying if they say they are against DEI. Are they against fairness? Are they against people having what they need to do their best work? Are they against people feeling valued and supported?
⭐ If they are against illegal discrimination against white people… ask them where in their organization’s DEI materials does it advocate for taking away jobs and opportunities for white people? That is not actually what DEI is about at all and something that can be easily agreed upon.
⭐ If you have the bandwidth, lean into curiosity to find out where the fear and hurt is coming from. Suggest ways they can make use of resources for support - maybe your organization has an EAP program they can access.
⭐ Remind them that it isn’t the naming of race and racism (for example) that is divisive, it’s the failure to acknowledge and address it that is.
⭐ Share your experiences of how you as a white person have benefitted from DEI efforts to improve work culture.
⭐ Engage the best you can, but don’t give it too much air or let yourself get “rage-baited” as the kids say. Understand that your speaking up may not change the mind of the person you are talking to, but will mean something to those who are watching.
About the legalities: DEI HAS NOT BEEN MADE ILLEGAL.
Yes there is a DOJ memo targeting “illegal DEI and DEIA discrimination and preferences.”
Guess what? Illegal discrimination on the basis of race, gender and other protected characteristics is in fact illegal and has been since the Civil Rights Act of 1964 made it illegal. Nothing has changed from a legal perspective for private employers.
One of our team had a good example - if the government said they were criminally pursuing illegal banking activities, you wouldn’t think “oh noooo banking is illegal I’d better stop banking.”
You’d think “hmmm, am I doing any illegal banking activities” and if so, you would maybe reconsider the risk, and if not, you’d keep going about your day because you know it’s not banking itself that is suddenly illegal.
With DEI it is obviously a little different in that we know they actually ARE against DEI and they actually are banning DEI at the federal government level and for federal contractors…
“Yet, in employment for example, properly designed DEIA programs are not only legal under federal and state civil rights laws and longstanding legal precedents; they are also necessary to ensure compliance with those laws.
Programs labeled as DEIA encompass a broad range of lawful initiatives that create fairer workplaces and schools. The executive orders attempt to conflate these lawful efforts with discrimination, weaponizing enforcement to bully institutions into abandoning critical programs and taking steps to try to eliminate protections against discrimination by government contractors. However, no court has declared DEIA efforts inherently illegal, and President Trump cannot override decades of legal precedent.
Companies, schools, and institutions must resist the fear and confusion these executive orders are designed to create. Now is the time to double down on our commitment to equal opportunity, ensuring that everyone, regardless of their background, has a fair chance to thrive.”
“Trump’s Executive Orders Rolling Back DEI and Accessibility Efforts, Explained” - ACLU (added emphasis is ours)
“But the current administration doesn’t respect laws, and so the fact that it’s still legal is just semantics at this point,” you might be thinking, even though you are in favor of DEI.
The fear, hopelessness and despair is understandable.
However, while this administration may be attempting to create a chilling effect through enforcement threats and policy bans in federal spaces, private employers are still fully within their rights to pursue diversity, equity, and inclusion efforts that align with existing law.
In fact, while we never like to frame DEI purely in terms of compliance, the unfortunate irony is that rolling back DEI might put your organization at risk of being out of compliance with the federal anti-discrimination regulations that still exist, and that the current administration is claiming that they want to uphold.
No, it doesn’t make logical sense but it makes political sense as a harmful and hypocritical strategy. This isn’t just semantics - it’s about understanding the difference between political messaging and actual legal standing. If we let fear dictate our actions, we risk self-censoring initiatives that are both lawful and beneficial to organizations, employees, and communities. That’s why it’s crucial to stay informed, consult legal experts when needed, and continue to advance diversity, equity and inclusion in ways that are both impactful and compliant.
Yes, organizations have and will continue to roll back DEI anyway - just don’t let anyone make you think it’s because DEI is illegal when it isn’t. Even Inc Magazine is talking about how These 5 Principles Will Help Preserve Your Company’s DEI Efforts and make them defensible.
In summary: yes, illegal discrimination is illegal. This is not anything new. DEI is not illegal. It benefits everyone.
Yes there will be dissenters, but we are continuing to have great workshop sessions with our clients who have so much pride, so much engagement, so much commitment, and so much gratitude for being part of an organization where there is a long term investment in DEI, and DEI is seen to be directly relevant to forwarding the organization’s mission.
It may FEEL like "the culture is moving away from DEI" but that's only true if we let it become true.
Need some support as you figure out how to move forward with DEI at your organization at this time?
Our Leadership Relief and Alignment track is designed to provide immediate, targeted support for leaders navigating the complexities of cultural transformation.
While this package is designed to lead into an exploration of a longer term engagement, we are also willing to offer it as a standalone package for leaders needing some guidance and support right now. Please reach out to chat if you are interested.
Banner photo by Jametlene Reskp on Unsplash
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