Jonathan Segal is a partner at the law firm Duane Morris and serves as the executive director of the Duane Morris Institute.

As you have undoubtedly read, President Trump has terminated DEI (diversity, equity, and inclusion) programs within the federal government and revoked Executive Order 11246, which had required federal contractors to take affirmative action in hiring women and certain minority groups. However, the executive order signed by President Trump, titled "Ending Illegal Discrimination and Restoring Merit-Based Opportunity,"also targets DEI practices in the private sector.。

Section 4 of the executive order is titled "Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences." To achieve this goal, President Trump has directed all federal agencies, with the assistance of the U.S. Attorney General, to complete the following within 120 days of the order's issuance:

  • Identify the most "egregious and discriminatory DEI practitioners";
  • Develop a plan or specific steps and measures to curb DEI programs or tendencies that constitute "illegal discrimination or preferences";
  • Establish strategies (including litigation measures) to encourage the private sector to "end illegal DEI discrimination and preferences."

Contrary to some reports, the executive order does not attack all DEI initiatives. Based on its plain language, it targets only those DEI practices that violate the law.

We are already witnessing a wave of challenges to DEI programs, including a rise in the number of "reverse discrimination" claims allegedly caused by illegal DEI initiatives. This executive order will further intensify that trend.

Trump's executive order is nothing less than a resounding call for employers to review their DEI practices immediately.

The Nuances of "Illegal DEI"

Your review should begin with those practices that are clearly illegal. To name just a few: quotas, set-asides, and preferences based on race, sex, and other factors are all unlawful.

But employers cannot focus only on programs that are facially illegal. Employers must also assess programs that are not inherently illegal but may facilitate unlawful conduct. For example, some companies set "aspirational goals" to improve workplace diversity metrics. Such goals may be viewed as de facto quotas and challenged accordingly. These challenges will be even stronger if leaders' efforts to meet such goals are tied to their performance evaluations or compensation.

Furthermore, employers need to consider not only specific employment policies and practices but also the corporate culture. For example, if an employer or trainer categorizes employees based on their race, sex, religion, sexual orientation, or other inherent characteristics and labels them as "privileged" or "non-privileged" groups (oppressors and the oppressed), this is almost tantamount to actively inviting litigation attacks from the federal government or private plaintiffs.

Also, examine the meta-messages conveyed by your programs. For example, many DEI programs include implicit bias training. Is the message conveyed by this training impartial? Or does it imply that white people and/or men are the primary culprits of implicit bias?

Let's also talk about "woke" language, which is often conflated with DEI. Admittedly, we need to be sensitive to the words we use and carefully employ language that is as inclusive as possible. But common sense is equally essential. If an employee is publicly "corrected" for using the term "pregnant women" instead of "birthing persons," how would you view that? He could very well become a whistleblower.

Of course, the process of reviewing your own DEI initiatives is not without legal risk, especially when illegal or high-risk DEI practices are discovered. Employers should consider the potential benefits of utilizing attorney-client privilege when conducting the review.

Moreover, the process of implementing changes is far more complex than it appears on the surface. When taking corrective measures, employers should, as much as possible, avoid implying that any past practices may have been illegal. For example, the focus could be framed as making practices "more inclusive."

Paving the Way Forward for DEI

Of course, employers should not merely be on the defensive. Employers must think about what concrete steps they can take to strengthen the position of diversity initiatives that are not illegal or high-risk. For example, ensure that the definition of "diversity" is broad (going beyond protected characteristics). Discuss other differences that may affect the employee experience, such as skills, experience, and perspectives. If you focus only on protected characteristics, it will be difficult to argue that your definition of diversity goes beyond those factors.

And do not overlook training managers in recruitment and promotion. Without such training, some managers, in an effort to boost diversity metrics, will inevitably resort to illegal preferences.

For some, the legal risks of continuing diversity initiatives may seem too high. Is it safer to abandon DEI programs altogether? The simple answer is a clear "no."

As the pool of qualified talent becomes increasingly diverse, the business benefits of diversity are now more significant than ever.Inclusive diversity is essential for attracting and retaining top talent.

Moreover, unnecessarily cutting DEI programs also carries legal risks. What signal will you send to employees, business partners, and consumers? Just as plaintiffs challenge overly broad DEI initiatives, the plaintiffs' bar has made clear that they will argue that cutting DEI programs reflects hostility based on race, sex, and other factors.

Whatever we do (or do not do), risk is always present. Therefore, we might as well do the right thing. And in my view, that means maintaining a continued focus on the inclusion of diverse talent, while discarding illegal preferences, exclusionary practices, and inappropriate messaging.