By: TESA HARGIS, SENIOR STAFF

I. Introduction

Diversity, Equity, and Inclusion (“DEI”) programs have come under intensifying scrutiny following President Donald Trump’s return to office in January 2025. On January 20, 2025, he issued Executive Order No. 14,151, titled Ending Radical and Wasteful Government DEI Programs and Preferencing, that mandated the elimination of federal DEI initiatives and associated roles—such as Chief Diversity Officers—across all executive agencies. The next day, Executive Order No. 14,173 revoked affirmative action requirements for federal contractors, which also reshaped the regulatory landscape for private sector employers.

These Executive Orders initiated a transition period, with full enforcement required by April 19, 2025. In response, companies like Boeing, Citigroup, and Chipotle began dismantling DEI initiatives, while states such as Texas quickly passed legislation eliminating DEI offices from public universities. As of April 2025, at least 20 states have introduced or enacted legislation restricting DEI programs in education, government, and, in some cases, private employment. Major corporations such as United Airlines and Nordstrom have continued to scale back their DEI departments, citing increased legal risks and political pressure.

Although some organizations characterize these developments as a shift toward race-neutral policies, the abrupt modification or elimination of DEI programs without proper legal evaluation may expose employers to significant liability under Title VII of the Civil Rights Act of 1964 and analogous state laws. Title VII prohibits discrimination in employment “because of” an individual’s race, color, religion, sex, or national origin. Reports also warn that scaling back DEI initiatives—such as inclusive hiring strategies, pay audits, and training programs—could heighten both the risk of disparate treatment and disparate impact claims, particularly amid increased enforcement efforts by the Equal Employment Opportunity Commission (“EEOC”).

II. Legal Risks of Removing DEI Programs

The response of many employers to initiatives to dismantle DEI may unintentionally expose them to liability under Title VII of the Civil Rights Act of 1964. The elimination of programs without proper analysis will likely lead to claims by employees under two primary theories recognized by the courts under Title VII: disparate treatment and disparate impact.

Disparate treatment refers to intentional discrimination. The Supreme Court in McDonnell Douglas Corp. v. Green established the framework to prove disparate treatment under Title VII, and held that employers can be found liable if adverse employment actions—such as layoffs, demotions, or reassignments—are made based on protected characteristics, or if changes to workplace policies disproportionately burden a protected group. The Supreme Court in Furnco Constr. Corp. v. Waters held that even if the employer does not explicitly state a discriminatory motive, a court may infer intent from circumstantial evidence. Under the burden-shifting framework also established by the Supreme Court in McDonnell Douglas Corp. v. Green, plaintiffs first must establish a prima facie case, after which the burden shifts to the employer to offer a legitimate, nondiscriminatory reason. Plaintiffs then have an opportunity to show that the reason is “mere[ly] pretext.”

Disparate impact, by contrast, involves employment practices that appear neutral on their face but disproportionately affect members of a protected class. Disparate impact does not require proof of intent. The key question in disparate impact cases is whether a facially neutral policy or practice creates “built-in headwinds” for protected groups, absent a business necessity.

The abrupt elimination of DEI programs by employers may produce obstacles to equal opportunity. Stopping required bias trainings or removing access to affinity groups or mentorship programs could lead to discrimination claims, especially since those programs have palpably improved access and retention for historically underrepresented groups.

The Supreme Court in Int’l Blvd of Teamsters v. United States held that employees could bring a disparate treatment claim if an employer removes programs which create a more equal and inclusive environment for minority groups while maintaining a system that disproportionately benefits non-minority employees. Additionally, employees could bring a disparate impact claim by citing statistical disparities or alleging loss of opportunities for protected groups due to removal of DEI. Ultimately, there is a heightened risk of discrimination claims where there are evidenced communications and executive statements expressing animus towards certain protected groups of framing DEI as unnecessary since those groups have “caught up.”

Comprehensive eradication of DEI without thoughtful reform or review may destabilize businesses and create the kind of discriminatory impact prohibited by Title VII.

III. Employers Cannot Use DEI to Protect Unlawful Practices

The EEOC’s March 2025 guidance clearly states that Title VII prohibits employment actions “may be unlawful if they involve an employer or other covered entity taking an employment action motivated – in whole or in part – by an employee’s or applicant’s race, sex, or another characteristic” even in the name of advancing diversity. This includes hiring choices, promotional candidates, and other programs catered explicitly or implicitly to a protected trait or group as decision-making criteria.

The EEOC clarified that Title VII applies equally to all employees—whether members of historically marginalized groups or not—and there is no heightened evidentiary standard for so-called “reverse discrimination” claims. Importantly, the EEOC warned that employers cannot justify race-conscious practices under a generalized “business necessity” or diversity interest. Title VII allows for bona fide occupational qualifications (“BFOQ”) only in narrow circumstances—and excludes race and color from this defense.

Employers can, however, utilize DEI lawfully in the advancement of an inclusive workplace without violating Title VII or equivalent state statutes by using inclusive outreach and recruitment practices to expand candidate pools but without protected traits being determinative; bias-free evaluations that rely on skill-based assessments; voluntary trainings aimed at awareness; affinity groups open to all employees; and equity audits to identify and remove barriers with neutral systemic corrections.

IV. The Value of DEI in Advancing Equal Opportunity and Mitigating Risk

Despite the current political landscape, DEI initiatives remain critical to advance workplace equity. DEI programs have historically aided in the identification and dismantling of systemic barriers that have excluded underrepresented groups from equitable employment opportunities. The EEOC has emphasized that when implemented lawfully, DEI efforts promote merit-based advancement by ensuring equal access to opportunity, reduce bias in decision-making, and foster inclusive cultures that benefit all employees.

Studies consistently show that diverse teams perform better, reduce groupthink, and foster innovation. EEOC Data Collection shows that DEI programs also serve a preventive function; for example, regular pay audits and bias training can detect disparities early, mitigating the risk of Title VII violations. Moreover, courts have often looked favorably upon good-faith efforts to promote equity when they are part of a neutral and inclusive strategy.

The absence of DEI initiatives—particularly where there is a documented history of exclusion—can increase the likelihood of liability. Employer vigilance is essential to ensure selection procedures do not operate to exclude protected groups absent a justified business necessity. Employers risk disparate impact claims if they fail to monitor internal equity which could cause statistical disproportions.

V. Conclusion

There has been an obvious shift in the political and legal landscape, and employers must recognize the risks of eliminating DEI programs without sufficient analysis. Lawful DEI practices grounded in neutral outreach, fair evaluation, and systemic equity review are permissible under Title VII, they are essential tools for risk mitigation and organizational success. By prioritizing compliance and fairness, employers can create workplaces that are both legally sound and genuinely inclusive. In the post-2025 regulatory environment, employers must weigh legal caution against strategic inclusion. Comprehensive eradication of DEI without thoughtful reform or review may destabilize businesses and create the kind of discriminatory impact prohibited by Title VII.