Navigating the Uncertainty of Illegal DEI

Author: Sarah Peterson Herr

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While private employers have felt some anxiety about the diversity, equity and inclusion (DEI) executive orders and how they might affect their business, Attorney General Pam Bondi, on her first day in office, issued a memo targeting DEI initiatives at private companies. Bondi explained: "To fulfill the Nation's promise of equality for all Americans, the Department of Justice's Civil Rights Division will investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector."

While the memo does not define "illegal DEI," it specifies that it does not include "educational, cultural, or historical observances - such as Black History Month, International Holocaust Remembrance Day, or similar events - that celebrate diversity, recognize historical contributions, and promote awareness." 

The headline has left many employers scrambling. While some employers publicly canceled their DEI programs ahead of the latest news, other employers scooped up the opportunity to double down on their DEI efforts. Most employers, however, aren't sure what to do.

The Internet is quick to tell you to review and revise existing policies and initiatives to ensure there are no references to diversity, equity, inclusion or accessibility that may be considered illegal. As employers are scrambling to review their policies, it can be difficult to spot the difference between illegal DEI and accessibility efforts and "educational, cultural, or historical observances."

Quiet DEI - Not just another corporate buzzword

If your HR department wants to balance the benefits of a quality DEI program, while remaining legally compliant, Quiet DEI may be a viable option. Under Quiet DEI employers can continue providing inclusive, diverse, equitable and accessible initiatives without overtly calling them "DEI." While there is not a right way to transition to Quiet DEI, it comes down to the messaging.

Employers considering Quiet DEI should refine their messaging to focus on promoting an inclusive, respectful and fair workplace. HR can focus on psychological safety to create an environment where employees feel like they belong. Under Quiet DEI employers promote equal access to opportunities for growth and development, ensuring all employees have the resources they need to succeed.

The DOJ memo emphasizes that private employers must consider whether their DEI initiatives may be considered illegal DEI. Employers should determine what approach their company wants to take, whether that be renouncing DEI initiatives, emphasizing their commitment to DEI or quietly offering similar programming with a refined message.

When implementing Quiet DEI, HR professionals should consider implementing these best practices.

  • Audit any diversity, equity, inclusion or accessibility-related policies or initiatives, first focusing on any practices that are clearly unlawful, such as quotas.  Employers should also consider if any policies could encourage conduct construed as illegal DEI, such as having enumerated diversity goals. Ensure policies focus on including all employees. Consider replacing DEI-specific references to focus on what each policy specifically does (e.g., promoting an accessible office or ensuring all employees feel they belong).
  • Openly communicate any changes or updates to policies with staff. HR professionals will have the difficult task in ensuring all management and supervisor staff understand how these issues may affect their day-to-day employee management. HR staff should also ensure that supervisory staff understand merit-based practices.
  • Encourage open discussions and listen to employee feedback. While it might be difficult to balance competing interests, employees will feel seen and heard.
  • Stay apprised of additional changes in this area. Brightmine has made it slightly more manageable through the resources The Trump Administration: Tracking the First 100 Days and Trump's 2025 Executive Orders - What They Cover and How They Impact HR.

Employers must continue complying with any federal, state or local laws, even if they seemingly touch on a DEI-related area. Executive orders and department memos do not alter the black letter law. By focusing on your values, language and culture, you can effectively promote diversity, equity, inclusion and accommodations in your workforce while quietly complying with the law.