Understanding DEI programs in the workplace in a new landscape

While diversity, equity, and inclusion (DEI) executive orders make for big headlines, it may not mean a lot of changes in the workplace — as long as employers are complying with labor and employment laws, one expert says. With news coming rapidly from Washington, D.C. and from the courts, it’s been a whirlwind few weeks, says Salvatore G. Gangemi, a partner with the labor and employment practice group at Harris Beach Murtha, a law firm based in the Rochester region that has Central New York offices in the Syracuse, Ithaca, and Binghamton areas.  What hasn’t changed, however, are laws that prohibit the use of race, sex, or other protected characteristics when making employment decisions, he says. President Donald J. Trump issued a series of executive orders that target DEI programs, including Executive Order 14173, titled, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” What exactly will the executive orders target if they are not struck down in court and go into effect as scheduled? The answer is in the wording of the executive order, which refers to illegal DEI programs, Gangemi says. “It’s clear that not all DEI programs are illegal,” he notes. However, there are some that are illegal. A DEI program is considered illegal if aspects of the program or decision-making process is motivated wholly or in part by race, sex, or other protected characteristics, he explains. More simply put, it is illegal for a company to undertake an initiative to hire more people of a certain race or gender, for example. DEI programs were never meant to do that, Gangemi contends. Rather, their intent is to make more people feel comfortable applying for jobs where their race, gender, or other protected characteristics may have prevented them from applying previously. And when a company broadens its applicant pool, “then you end up organically increasing diversity,” he asserts. But the DEI programs were never intended to counteract labor and employment laws like the Civil Rights Act of 1964 or the Equal Employment Opportunity Act of 1972. “These executive orders do not create new law in this area,” Gangemi says, and those laws remain in effect governing workplaces today. “DEI is not supposed to displace merit, and in most cases it has not displaced merit,” he stipulates. And the executive order does not mean things like pay equity and accessible workplaces will vanish, because “those things didn’t come from DEI,” he says. “Those things came from the law.” What the DEI executive order does is signal that the government will not ignore DEI programs that may be illegal because they violate labor and employment laws. What does that mean for organizations with DEI or related programs and policies, and what should they do now? “Treat all this as a reminder to have your programs and policies audited,” Gangemi recommends. Some potential pitfall areas to examine are any internships, mentoring, or fellowships exclusive to a specific gender, race, or other protected characteristic. Also take a close look at any employee resource or affinity groups, he adds. It’s ok, for example, to have a LatinX employee resource group, however, the group needs to be open for everyone to join. Another area that can be problematic — and illegal — is tying incentives for an officer or manager for achieving DEI goals. “It’s a good idea to assess, audit your programs and make sure you’re not going to be a target,” Gangemi says. Regardless of the executive orders, “the law is the law is the law,” and employers must follow it, he concludes.