Expert Insights: Silence is frustrating when it comes to DEI compliance
If you’ve spent the past year wondering when the federal government would clarify what constitutes unlawful diversity, equity, and inclusion (DEI) in the workplace, you might want to move to a more comfortable chair, because the wait continues.
Recent court activity highlights the ongoing uncertainty over what is meant by “illegal DEI” in Executive Orders issued by the president in January 2025, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” and “Ending Radical and Wasteful Government DEI Programs and Preferencing.”
One federal court in particular expressed the frustration felt by employers seeking clarity. On January 30, the U.S. Court of Appeals for the Seventh Circuit heard oral arguments in Chicago Women in Trades v. Trump, No. 25-2144, concerning whether the administration can require federal contractors and grantees to certify that they don’t operate DEI programs that violate federal antidiscrimination laws.
The judges hearing the case criticized the federal government for not defining what separates lawful DEI from unlawful DEI.
Although the litigation directly affects federal contractors and grantees, the uncertainty has broader implications for private employers that value compliance and also understand the potential benefit of more diverse, equitable, and inclusive workplaces.
Though this and other courts have pressed the federal government to clarify where lawful DEI efforts end, and unlawful practices begin, no formal rules have emerged.
What the lack of rules surrounding DEI means for employers
For HR leaders, lack of concrete rules creates a need for thoughtful review of anything that could be viewed as DEI related, including programs, policies, training, and initiatives, even if they aren’t formally labeled as DEI.
Specifically, employers should carefully consider:
- Recruiting efforts,
- Leadership development programs,
- Mentoring initiatives, and
- Employee groups and events.
Make sure all those things align with longstanding federal antidiscrimination laws, such as Title VII of the Civil Rights Act of 1964 which prohibits discrimination in employment based on membership in a protected class.
Document the purpose and structure of programs and initiatives and identify how they support equal opportunity. Programs should focus on education, awareness, and inclusive culture rather than preferences or exclusions tied to protected characteristics.
It’s also important to be consistent with internal messaging. HR leaders should make sure managers and HR staff use careful, neutral language when discussing any DEI-adjacent programs or initiatives, because inconsistent messaging can create unnecessary risks.
Regularly reviewing policies, programs, and initiatives shows good faith compliance efforts. If you have any questions about compliance, consult with an attorney or compliance expert.
Most importantly, HR should avoid making rash decisions due to the lack of clear guidance. Eliminating all inclusion-related efforts might negatively affect engagement, morale, and employer reputation. A thoughtful approach, however, allows employers to build and maintain respectful workplaces while adapting to an evolving legal landscape. Plus, it will give you something to do while you’re waiting for the federal government to issue specific rules.
