Employers must be vigilant in the current political climate with recent Executive Orders and EEOC pronouncements referring to “unlawful” DEI practices. DEI efforts of organizations continue to be closely scrutinized and may be subject to challenge. Given this, organizations are encouraged to audit their programs and practices thoroughly to ensure compliance.
There are areas that have been the subject to legal challenges and/or can create vulnerabilities. Some of these include the following:
- Quotas, preferences, plus factors, or set asides based on protected class
- Balancing programs based upon protected class status
- Mandatory corporate commitments to supplier/vendor diversity initiatives
- Compensation/incentives/bonuses tied to achieving diversity goals or penalties
- Diverse candidate slates or diverse hiring panel requirements
- Closed affinity/ERG/segregated groups for mentorship/leadership
- Internal/external DEI materials/messaging
- Hiring/promotion policies, internship/mentoring programs providing preference to a protected class
- Employee training that results in protected class stereotyping/hostile environment
- Policies limiting speech/expression and/or restricting certain viewpoints
- Artificial Intelligence driven hiring tools with bias
- Requiring diverse corporate boards
As always, employment decisions cannot be based upon protected class grounds and must be based upon legitimate nondiscriminatory reasons and not on protected class. While most DEI efforts are geared toward preventing discrimination and creating inclusivity for all, given the skewing of these programs, employers must remain on guard.
If your organization would like to learn more about the firm’s DEI and Training & Coaching services, please contact Kirsten.Branigan@KSBraniganLaw.com or call (973) 542-8096.
This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission.