Even as human resource teams strive to maintain legally compliant Diversity, Equity, and Inclusion (DEI) programs, the current political climate presents a challenging landscape where even legally sound initiatives can become entangled in controversy and scrutiny.
This landscape has been shaped by the decision of the Trump Administration to fulfil its promise to target DEI programs with a series of executive orders (EO) aimed at curbing what is described as “illegal and immoral discrimination programs.” While these executive orders do not change anti-discrimination laws, they threaten increased investigation and encourage legal action against those who engage in what the Administration deems is “illegal DEI.” Compounding this risk, the EEOC has also prioritized enforcement against unlawful DEI initiatives, further increasing employers’ exposure.
Although the EOs have not changed the law surrounding DEI, recent U.S. Supreme Court decisions have lowered the legal hurdles for litigants bringing discrimination claims, potentially leadings to an increase in “reverse discrimination” claims. On April 17, 2024, the Supreme Court issued a decision in Muldrow v. City of St. Louis, unanimously holding that employees only need to show “some harm” to demonstrate an adverse employment action, and need not show the employee suffered “significant” harm to state a claim of discrimination under Title VII.
Subsequently, on June 5, 2025, the Supreme Court issued an unanimous decision resolving a circuit split concerning whether “reverse discrimination” litigants are required to establish a heightened standard to establish their claims. The Court held that both majority and minority group plaintiffs face identical evidentiary requirements, eliminating the heightened “background circumstances” test in establishing a claim of reverse discrimination. Although most circuits had already rejected the heightened standard, in the circuits where it still applied, the decision will make it easier for litigants to bring “reverse discrimination” claims.
Indeed, Muldrow suggests that a plaintiff could plausibly argue that DEI-related trainings give rise to a colorable discrimination or hostile work environment, provided that the employee can establish “some harm” caused by the training or program. Indeed, the EEOC has encouraged these types of claims in its 2025 guidance. The EEOC’s guidance states that a plaintiff may plausibly allege that DEI trainings could give rise to a colorable hostile work environment claim.
However, to date, such claims have failed as Courts have held that such trainings are not sufficiently severe or pervasive to create a hostile work environment under the law. For example, in De Piero v. Pa. State Univ., a white university professor brought a race discrimination, hostile work environment, and retaliation claim, arguing that the university’s anti-racism trainings in the wake of the murder of George Floyd created a hostile work environment forcing him to quit. While the Court dismissed plaintiff’s discrimination claims, it did not dismiss the hostile work environment claim at the motion to dismiss stage. At summary judgment, however, plaintiff was not so lucky. On March 6, 2025, the Court granted summary judgment in favor of defendants, holding that the conduct was neither sufficiently severe nor pervasive to constitute harassment.
Even if a company maintains a legal DEI program, the risk of a federal investigation, including by the DOJ and the EEOC, based on the appearance of problematic DEI programs remains. The DOJ has publicly announced that it is launching a Civil Rights Fraud Initiative that will investigate and potentially pursue legal action against recipients of federal funds who maintain illegal DEI programs, leveraging the False Claims Act for this purpose. Similarly, the EEOC is actively investigating potential unlawful DEI practices, including at law firms and other workplaces, to determine whether such programs violate Title VII of the Civil Rights Act. These investigations carry consequences including reputational damage, public scrutiny, onerous discovery requests, increased regulatory oversight, and mandated policy overhauls.
Certain language that suggests problematic DEI practices, including publicly facing website materials that promote the hiring of “diverse talent,” could potentially lead to an investigation even if the company is ensuring that it only hires the most qualified candidate for a particular role. This type of public-facing content could trigger scrutiny involving costly, time-consuming inquiries, not to mention litigation, damages and fines.
Nevertheless, employers are not without strategies to advance inclusion while still minimizing legal risk. Organizations should assess their DEI program objectives and analyze ways to achieve such objectives without relying on any protected characteristic. Often times, in particular where the company already maintains legal DEI programs, it is the messaging more than the substance of the programs that can prevent scrutiny. Organizations can safeguard their DEI efforts by shifting focus from race, gender or other protected classes and instead focusing on programs that are aimed at socioeconomic status, geographic region, first-generation status, veteran status, or nontraditional background (e.g., returning adult learners). Often times, these shifts helps companies meet the ultimate goals that intend to achieve from their DEI programs, without carrying the legal risk.
Amidst this rapidly changing legal landscape, human resource teams should audit their DEI programs to stay ahead of legal challenges and ensure they are maintaining lawful and effective DEI initiative. The highest-risk programs should be prioritized—specifically, those that that offer a tangible benefit, such as mentorship initiatives, leadership pipelines, internships, or special training programs, to one group over another based on a protected trait such as race or sex. Employers should also conduct audits that include their public messaging. For example, if a man is denied a job opportunity and a woman is selected instead, he may later discover that the company’s website highlights women-focused programs, mentorship initiatives, or affinity groups. These public materials could support an inference of discrimination and serve as evidence in a lawsuit, even if it had nothing to do with job selection.
Crucially, these audits are most effective when performed by legal counsel. Legal counsel with experience with auditing DEI programs will know the tips and tricks to protect companies from legal risk. Further, while reviews done by HR professionals are discoverable in litigation, those performed or directed by attorneys are protected by attorney-client privilege. A legally privileged audit allows companies to assess their exposure and take remedial action without handing plaintiffs a roadmap for litigation.
By proactively reassessing both the substance and presentation of DEI initiatives, employers can continue to foster inclusive workplaces while effectively navigating the current legal and regulatory landscape.
Tara Param is a labor & employment attorney in Holland & Knight's Philadelphia office. As an experienced trial lawyer and trusted advisor, she partners with clients to design and implement strategies that mitigate risk, safeguard business interests and support corporate transactions.
Grace Mohlin is a summer associate in Holland & Knight's Philadelphia office.
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