The future of DEI

Diversity, Equity and Inclusion has become much more complicated after Trump moved into the White House. Most corporations, federal agencies and academic institutions have built up DEI offices and use DEI principes for recruiting. If there were five candidates and one was transgender, the transgender candidate would get picked regardless of qualifications. DEI was the big thing a few years ago during the pandemic crisis and right after the George Floyd riots.

Corporations large and small went to great lengths to create and implement policies, grants and special programs that showed how they valued everyone regardless of the color of their skin or sexual orientation. Governments, large and small, enacted regulations requiring businesses to prove how diverse they were to get contracts and funding. Big brands told their small suppliers to treat everyone equally, or else they would take their business elsewhere.

DEI, as in most human endeavors, went too far. The whole idea is idiotic. Why should the most qualified person not be selected? This has been the case before. In many countries the candidates are based on ideology and politics, not on qualifications. Bud Lite, Target and Victoria’s Secret all chose to use DEI in their marketing campaigns, alienating customers. Companies choosing to favor skin color over merit faced a lack of labor supply and fell short of their hiring goals. Meanwhile, big brands such as Wells Fargo, Netflix and Walmart tried valiantly to implement DEI policies in their hiring with catastrophic results. Ivy League universities that tried to please everyone lost their leaders. A Supreme Court ruling reset the college admissions process, rolling back years of reverse discrimination.

Within days of his inauguration, Trump issued two executive orders: Ending Radical and Wasteful Government DEI Programs and Preferencing and Ending Illegal Discrimination and Restoring Merit-Based Opportunity. Both rolled back DEI requirements for federal activities and private-sector employers. These orders instructed federal officials to submit recommendations to end illegal DEI practices and for federal agencies to identify potential civil compliance investigations of large companies that may be implementing their DEI policies wrongfully. So far, the courts have been on his side.

To provide more guidance to employees and employers, the Equal Employer Opportunity Commission and the Department of Justice issued a joint document in March called “What to Do If You Experience Discrimination Related to DEI at Work,” and the EEOC released a technical assistance document called “What You Should Know About DEI-Related Discrimination at Work.”

Anyone who reads these documents will understand their main point, and it’s this: An employer’s DEI policies, programs and practices cannot violate Title VII of the Civil Rights Act of 1964 and must apply to all employees regardless of their skin color, age, gender, sexual orientation or favorite baseball team. It should not be considered in the hiring, firing, promotion, demotion, compensation, training, mentoring, interview or any other employment process at a company. Labor lawyers and human resources experts are in a tizzy as DEI is based on discrimination. Everyone is trying to figure out what to do. Corporations are reviewing their recruiting processes, reimplementing merit-based practices, reconsidering their race-based goals and bringing in more trainers. They are retooling their internship and mentoring programs and focusing on inclusivity.

So, what’s the best DEI policy? How about we go back to 2019 and have no policy at all? In the end, do companies really need a DEI policy? Is this something that needs to be brought to attention? Having a policy puts companies in a position of having to be compliant with that policy, and any good lawyer can figure out reasons that’s not so. Having no policy leaves everything open.

If you have a DEI policy, my advice is to rip it up. If you are thinking of creating one, don’t. Hire the best people. Promote the ones who deserve to be promoted. Don’t worry about a person’s skin color, sexuality or gender. Worry about their performance, their interests, their contributions to your company, and their contributions to your company’s profitability. Help them succeed by paying them well. Offer a positive culture and encourage their personal growth.

The best DEI policy is no policy.