A Reckoning for “Woke” Employers?

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The past few years have seen employees endure endless “sensitivity” trainings and DEI initiatives at companies. Will “woke” employers now face a reckoning? At the Cato Institute, Walter Olson discusses what the future may hold for companies that have pushed DEI. He writes:

One of the central aims of President Trump’s executive order of January 21 is to declare a many-sided legal war on “illegal DEI” at private employers. But what is illegal DEI? The question is more easily asked than answered.

There would probably be wide agreement on one instance of illegal DEI, namely a company’s discriminating against a qualified candidate in hiring or promotion to make numbers come out in workforce demographics or simply to favor what the law calls a protected group. Discrimination and preferences of that sort have gone on openly for decades, in no small part because of the program of affirmative action for federal contractors introduced by the now-revoked Executive Order 11246 of 1965.

The Supreme Court seemed to countenance such preferences for many years, notwithstanding the language of the Civil Rights Act of 1964 itself. But recent decisions such as that in the Students for Fair Admissions case suggest that the court’s tolerance has come to an end. So far, so straightforward.

But “illegal DEI” must mean more than that. For one thing, if discriminatory preferences were the whole game, the executive order could readily have used a more specific term, such as “illegal preferences.” Instead, it uses “illegal DEI,” sometimes adding variations on the word “discrimination.” What other kinds of DEI practices might it have in mind as discriminatory or otherwise illegal?

Here are three categories of employer practice by way of example:

• Employee trainings that get into questions of race or sex. What if white or male employees say these make them uncomfortable or guilty or singled out? Does it matter whether essentially similar sessions are couched as harassment and discrimination prevention, sensitivity training, or diversity training, or whether they draw on controversial concepts such as “implicit bias”?
• Changes in hiring practices that are not themselves based on race or sex, but could have proxy effects based on those. Some employers have revamped hiring methods to drop or alter standardized tests, standardize interview questions, remove college degree requirements, or lift bars on hiring ex-offenders. In each of these instances some employers have cited DEI motivations, while others have adopted the same changes for reasons unrelated to DEI or from a mix of motives. Does that matter?
• Many companies have either permitted or encouraged the formation of employee affinity groups for women, particular racial groups, gays, and so forth. Tangible business reasons for doing so may include improved recruitment (at historically black or women’s colleges, for example), an early warning grapevine to identify claims of discrimination that otherwise might eventuate in lawsuits, and defenses against future claims that the company maintained a “hostile environment” toward a group. Legit or no?

The Trump administration may in time hand down guidance about which of these practices it regards as unlawful discrimination, and given the mood of its conservative base it will probably challenge some instances. The law firm Littler notes that “numerous high-profile advocacy groups are committed to publicly highlighting and calling for investigation of [DEI] programs they consider unlawful.” But for the most part, on the topic of what counts as discrimination, all the administration can offer are opinions, because it doesn’t get to decide what the Civil Rights Act of 1964 and other relevant statutes mean; the courts do.

Read more here.