In recent years, corporate diversity efforts have evolved from traditional “D&I” (diversity and inclusion) to “DEI,” adding “equity” — the pursuit of equal outcomes for historically marginalized groups.
As those working in talent or recruitment know, achieving equal outcomes is difficult and slow work. Factors like inaccessible talent pools and a lack of existing pipelines often lie beyond a company’s immediate control.
To speed up the process, some companies have downplayed legal risk and adopted policies and practices that intentionally favor disadvantaged groups. With the Biden Administration also focused on equity, the risk seemed more theoretical than real.
That changed with the 2024 election. The Trump Administration has prioritized dismantling DEI efforts across government, academia, and the private sector. Executive orders and funding decisions now target what the administration calls a return to “merit-based” systems and an end to “reverse discrimination,” or bias against white individuals and men. Following the lead of the White House, the Equal Employment Opportunity Commission (EEOC) now cautions that preferential treatment for protected classes may breach Title VII.
Employees (and plaintiffs’ attorneys) have noticed, and reverse discrimination claims are coming. As an example, Johnson & Johnson is now facing a federal civil rights complaint, alleging unlawful DEI practices across hiring, promotions, training, and clinical trials.
This risk will only grow as plaintiffs’ attorneys recognize the untapped potential for new clients and claims. Employers should now reassess DEI policies to mitigate legal risk, particularly potential class actions or claims of systemic discrimination. Here are key areas to evaluate:
Recruitment: Internship programs that prioritize underrepresented groups or job searches that mandate diverse hiring panels are increasingly vulnerable. Companies should eliminate any policy or practice (even if unwritten) that favors individuals based on inherent traits. Instead, consider legally sound practices such as expanding outreach to more diverse regions; reducing unnecessary education or experience requirements to grow the pool of qualified candidates; and promoting remote work, when possible, to hire the best talent anywhere.
Disciplinary Action: While carefully reviewing disciplinary action involving an individual in a protected class remains prudent, providing more lenient discipline or preferential severance packages to these employees can expose companies to class action lawsuits. HR teams must ensure managers apply policies uniformly, regardless of an employee’s inherent traits. This may require careful training of your employee relations teams, so they are aware of the changing legal landscape and its risks.
Handbook and Policy Language: Any information in employee handbooks or contracts that appears to favor specific groups is now problematic. Review and revise such language to emphasize fairness, opportunity, and respectful conduct in neutral terms.
Communication: Finally, communicate transparently with employees about any policy changes. Many are unaware of the shifting legal landscape, and abrupt changes to sensitive policies without explanation can harm morale and workplace culture.
If your organization identifies potential issues, consult legal counsel before implementing changes. This ensures you reduce risk while preserving legal privilege. Overcorrecting could lead to traditional discrimination claims, so a balanced, thoughtful approach is essential. Legal counsel will also help you create training for HR managers on how to handle this dramatic change in the legal landscape.