The recent executive order issued by former President Donald Trump, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”, has sparked significant discussions regarding diversity, equity, and inclusion (DEI) in the workplace. This order, highlighting the term “illegal DEI,” has raised concerns about which DEI practices may unintentionally subject organizations to civil compliance investigations.
This order instructs federal agencies to identify organizations that could potentially be involved in what it defines as illegal DEI activities. However, an explicit definition remains elusive. New York University Law professors Kenji Yoshino and David Glasgow argue that the interpretation of “illegal DEI” will largely depend on judicial precedents, such as the Students for Fair Admissions v. Harvard case, which emphasized that illegal DEI may involve preferences for protected groups.
The executive order emphasizes merit-based decisionmaking, reflecting a shift towards DEI practices termed “leveling” rather than “lifting”. “Leveling” DEI involves removing biases from processes to ensure an equitable environment, while “lifting” DEI involves granting preferential treatment to certain groups. This distinction was exemplified by US orchestras in the 1970s, which increased female musician representation through blind auditions—an approach aligning with leveling by de-biasing audition processes.
Anti-DEI advocates have primarily contested lifting DEI methods, which often encompass practices such as hiring set-asides or diversity goal-driven compensation elements. Examples of DEI efforts under scrutiny include targeted programs and initiatives considering race or ethnicity in eligibility and employment processes.
However, according to survey data, leveling DEI enjoys broader public support compared to lifting DEI. The Pew Research Center findings highlight American opposition to race-based factors in employment decisions but favor efforts to broaden access to opportunities historically denied. The executive order, while challenging for DEI advocates, inadvertently leaves room for leveling DEI, which may serve as a strategic direction for corporate leaders wary of potential legal repercussions.
As organizations navigate the complexities of regulatory compliance, the distinction between leveling and lifting provides a strategic lens for those aiming to sustain DEI initiatives that emphasize fairness without soliciting government investigation. For further insights, you may refer to the detailed analysis by Kenji Yoshino and David Glasgow on Bloomberg Law.