DEI Policy Concerns? HR’s 5-Step Guide, From a Former EEOC Attorney

President Trump’s executive orders aiming to dismantle DEI initiatives in the public and private sectors have caused widespread debates and confusion. 

Here’s a quick recap on what’s happening: 

• Andrea Lucas, the EEOC’s newly appointed Acting Chair, declared that one of her top priorities is rooting out “unlawful DEI-motivated race and sex discrimination” as outlined in President Trump’s executive orders. 
• Missouri AG Andrew Bailey has filed a lawsuit against Starbucks, alleging the company’s DEI policy illegally favors women and people of color.
• Sixteen state AGs signed a joint letter clarifying their support for DEI programs, noting the “important role of diversity, equity, inclusion, and accessibility efforts … in creating and maintaining legally compliant and thriving workplaces.”
• A federal court has blocked key provisions in two of President Trump’s DEI orders – at least temporarily. The decision is a fragile win for employers that choose to continue their DEI initiatives, and the defendants have already appealed the ruling.

In other words, there’s a lot of uncertainty surrounding DEI initiatives right now. So what’s the best move?

Should HR stay the course or shift away from DEI? 

Former EEOC Attorney on Diversity in the Workplace

Diversity has been a workplace issue for decades, but the way organizations approach it has evolved, according to Stephen M. Paskoff, a former EEOC attorney and the founder of Employment Learning Innovations, Inc. (ELI) – a compliance firm that offers training and other compliance services.

A Look Back at the Traditional DEI Approach

In the early days, the focus was on “cultural diversity,” meaning companies aimed to hire people from different backgrounds. As time went on, the conversation expanded to include inclusion – ensuring that diverse employees were hired and fully integrated into the organization, Paskoff explained.

Eventually, equity became part of the equation, recognizing the need to address systemic barriers that prevent equal opportunities. Even after the Civil Rights Act was passed, systemic discrimination persisted. Some organizations maintained hiring standards that excluded certain groups, often without a valid business reason. This led to affirmative action. 

While these efforts have driven progress, traditional DEI approaches also carry risks, Paskoff stressed. For example, oversimplifying diversity initiatives can lead to stereotyping, where employees are seen through the lens of demographic categories instead of as individuals. When DEI efforts focus too much on labels, they overlook the unique skills and perspectives that each employee brings.

The Equality Mindset

In Paskoff’s view, an equality mindset goes beyond traditional DEI approaches. 

It’s about creating fair opportunities for all employees, no matter their background. Instead of simply hitting diversity targets, an equality mindset focuses on making fairness part of everyday practices. Policies, promotions and development should be based on skills and performance, not just demographics.

It’s also important to understand that legal compliance and company values don’t need to be separate, according to Paskoff. Compliance with the law is crucial, but company leaders should also make decisions that reflect their company values. 

When you align the two, you create a workplace that’s both productive and low-risk, Paskoff said. It’s a place where employees feel respected and empowered to contribute, helping both them and the organization succeed.

Practical Steps for HR Professionals

Many HR leaders are exploring ways to keep the core idea behind their DEI programs while reducing legal risks amid the current uncertainty. Here are several actionable steps HR can take to transition from traditional DEI to an equality mindset.

1. Conduct a Policy Audit

A thorough policy audit can identify gaps and outdated practices so that HR and company leaders can make updates to improve company culture and mitigate risks. Specific to DEI policy audits, look for language that may appear stereotypical or exclusionary, Paskoff said. That kind of terminology needs to be revised.

It’s also a good idea to analyze data on hiring, promotions and complaints. Doing so can help HR identify patterns that might suggest unfair treatment or outcomes for employees based on protected classes. This audit can help you:

• Evaluate whether the policy is truly inclusive, and
• Determine whether the policy supports the company’s efforts to comply with Title VII.  

2. Revise Policy Language

When it comes to workplace policies, the language you use is crucial. Words have power – they shape perceptions, influence behavior and can even drive legal outcomes. 

Small changes in wording can make a big difference in how inclusive or exclusive a policy feels. For example, using terms that are too broad or vague can lead to confusion, while overly specific language might unintentionally limit opportunities or create legal risks. 

When necessary, replace problematic phrases with legally sound, equality-focused terminology. “Diversity and DEI programs must adhere to the law. And in instances where they don’t and/or create divisive conditions, intentionally or otherwise, they need to be replaced,” Paskoff said.

In a nutshell, this means HR pros should be intentional with the language used in the policy. The right terminology helps reinforce a company’s commitment to diversity and inclusion while meeting legal obligations under the law. 

It’s also important to outline behavioral expectations in the policy and enforce them consistently. You’ll want to: 

• Set specific rules. Clearly outline what behaviors are expected in the workplace, like respecting all co-workers and avoiding discriminatory language or actions.
• Give examples. Provide real-life examples so everyone knows what’s expected in terms of behavior.

3. Implement Ongoing Inclusive Training

Many companies have ended up in court over their mandated DEI training. For example: 

• A Colorado employee claimed his employer’s mandatory DEI training created a hostile work environment. His lawsuit alleged the training made “sweeping negative generalizations regarding individuals who are white” and used terms like “white fragility” and “white exceptionalism.”
• In Minnesota, a white Christian sued because of his company’s mandated DEI training. One was titled “How to be an Anti-Racist,” and another focused on gender identity training. He sought a religious accommodation to be exempt from the training. When the company denied his accommodation request, he retired early and sued the company. 
• An employee in New York refused to attend a mandated LGBTQ training on religious grounds. He was told to make up the training session or he would be written up for insubordination. When he still refused to attend, he was written up and fired. He then filed a Title VII lawsuit. 

Instead, the focus of training should be on what ELI calls “civil treatment,” Paskoff explained. It’s training that establishes standards of behavior for everyone, not just specific groups of people. 

The problem with some DEI training programs, Paskoff said, is that they take a complex issue and oversimplify it, often in a way that can be divisive. Training should focus on setting clear, fair expectations for workplace conduct that apply to everyone equally.

Moreover, training can’t be a one-and-done session, Paskoff said. It has to be embedded in the business. That’s what makes it effective.

4. Improve Communication Channels

Creating clear communication channels for employee complaints is essential for fostering an inclusive and supportive work environment. This includes:

• Providing multiple options to report concerns, including hotlines, a dedicated HR person, direct reporting to a manager and third-party systems
• Establishing and publicizing a clear reporting process in employee handbooks and onboarding materials
• Ensuring confidentiality and protecting employees from retaliation
• Providing manager training on how to handle employee complaints, and
• Encouraging a “speak-up culture” by periodically reminding employees about reporting channels.

These steps are important to help employees feel safe speaking up before problems escalate into legal disputes, Paskoff said.

ELI relies on its “JustTalk” model, which teaches employees the skills they need to hold respectful, inclusive and professional conversations in the workplace. 

Among other things, ELI’s JustTalk model stresses that employees need to speak up about their concerns and also listen when their co-workers respond. In Paskoff’s view, if you’re not willing to listen, you have nothing to say. He said open, back-and-forth conversations can often help resolve employee conflicts before things take a litigious turn. 

5. Lead By Example

Change in workplace culture starts at the top, Paskoff pointed out. If company leaders fail to embody the behaviors they expect from their teams, then the entire organization suffers. 

Well-crafted policies are a good start, but leadership must actively demonstrate those principles to build trust and ensure compliance. For example, leaders should observe workplace dynamics and be on the lookout for subtle biases that may not show up in data or surveys, such as dismissive behaviors in meetings where certain employees’ contributions are routinely overlooked.

In Paskoff’s view, a company should ask: Are we truly listening to everyone? Are certain voices getting dismissed, even unintentionally? It’s crucial to be mindful of these subtle behaviors.

And, of course, policies and practices must not only reflect fairness and civility but also comply with evolving legal standards. 

HR and company leaders need to monitor legal developments and adjust company practices as appropriate based on EEOC guidance and court interpretations.

Key Takeaways

According to Paskoff:

• Shifting from a DEI to an equality mindset minimizes legal risks by emphasizing fairness, civility and accountability for all employees
• Maintaining clear, behavior-based policies and continuous training are essential for preventing discrimination claims, and
• Leading by example is a crucial element of a positive workplace culture.

For more insights from Paskoff, check out his book, CIVILITY Rules! A New Business Approach to Boosting Results and Cutting Risks.