January 1 marked the effective date for a number of new state laws that attempt to restrict certain employers’ use of diversity, equity, and inclusion (DEI) programs. State legislatures are restricted under the First Amendment from prohibiting private sector employers from engaging in DEI efforts. As a result, these legislative efforts have focused on state agencies as well as public colleges and universities.

For private employers, challenges to DEI efforts are more likely to arise from individuals who believe that they were subjected to reverse discrimination resulting from efforts to increase minority representation within the workforce. Last year, a number of employers announced changes to internship and other programs to eliminate race, gender, or other protected classifications as qualifying criteria.

Employers’ DEI efforts should be guided by the principle that federal civil rights laws generally prohibit membership in a protected classification to be used as a criteria for making decisions that affect the terms and conditions of employment. Those laws extend their protections to non-minority classifications. In other words, hiring someone because the company wants to increase the number of minority employees in that position would violate Title VII.

Legal DEI efforts do not focus on quotas or the race and gender of persons hired for individual positions. Instead, these efforts should concentrate on ways to increase the number of qualified diverse candidates for hiring, retention, and promotion. By increasing that pool of candidates, the employer will increase the diversity of its workforce when the best qualified candidates are selected for individual positions regardless of those classifications.

Human resource and legal professionals should coordinate development and implementation of DEI programs. Existing programs should be carefully vetted to make sure they are not subject to claims of reverse discrimination.

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