HR leaders tread carefully in shifting DEI landscape

Adam Calli, owner of a Vienna-based human resources consulting firm, offers this advice to his fellow HR professionals: Keep on top of the goings-on in Washington, D.C.

“One of the things that a good HR person should be doing at all times — because it’s your freaking job, man — but especially given the current administration in the White House, is to stay aware,” says Calli, who founded Arc Human Capital in 2015.

For those who don’t religiously skim national headlines before getting out of bed in the mornings, here’s a primer: Following his inauguration, President Donald Trump unleashed a series of executive orders involving workplace discrimination. These EOs address subjects ranging from “defending women from gender ideology discrimination” to disparate impact, a term for when an action has a disproportionate negative effect on a protected class of people.

The overarching goal of these directives seems to be, as one executive order phrases it, to encourage meritocracy and a color-blind society.
Additionally, Trump appointed Andrea Lucas as acting chair of the U.S. Equal Employment Opportunity Commission, the agency responsible for enforcing federal laws that make it illegal to discriminate against job candidates or employees because of race, color, religion, sex, national origin, age, disability or genetic information.

A graduate of the University of Virginia School of Law, Lucas has spoken publicly about her view that policies and initiatives to increase racial and gender diversity at workplaces can lead to discriminatory employment practices. Since being named acting chair, Lucas has said keeping employees who were not born female out of women’s restrooms at the office is an agency priority.

So, that’s the broad strokes. The majority of HR managers, however, need to know more than that. They need to understand the ins and outs of workplace-related EOs and analyses coming out of the EEOC.

Staying abreast of those many changes can be overwhelming. Sheri Bender, director of diversity and inclusion for the HR Virginia Society for Human Resource Management State Council, has observed a collective anxiety among Virginia HR professionals related to the EOs on workplace discrimination when leading monthly diversity-related video chat sessions for employers and HR managers around the commonwealth.

“A lot of employers throughout the state are dealing with just the uncertainty,” says Bender, who owns Pulse HR Solutions, a Harrisonburg consulting firm.

Unlawful DEI

In 2020, thousands across America took to the streets to protest a police officer killing George Floyd, an unarmed Black man.

Conversations about racial equality spread to boardrooms, leading executives to set goals to increase the diversity of their leaders and staff members and generally embrace principles of diversity, equity and inclusion, or DEI.

Backlash followed. Critics charge that DEI divides Americans and leads to discrimination against white, heterosexual men. Then-former-President Trump echoed those sentiments on the campaign trail, pledging to “eradicate any attempt to weaken America’s institutions through these harmful and discriminatory ‘equity’ programs.”

It was a promise kept. On his first day back in office, Trump issued an EO titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” Among other things, that order instructs federal officials to author a report “containing recommendations for enforcing federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.”

Mike Gardner, a Roanoke employment attorney, advises the employers and executives he counsels to take a deep breath about that EO.

A principal at Woods Rogers, Gardner points out that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex or national origin.

“Unlawful DEI has been unlawful since Title VII was passed,” says Gardner. “Unlawful DEI was unlawful in 2019. It’s unlawful in 2025, and it’s going to be unlawful in 2030 because unlawful DEI involves making decisions in employment on the basis of race.”

When counseling clients, Gardner likes to point out what presidential executive orders can and cannot do.

“Title VII was passed by Congress, signed into law by [President Lyndon B. Johnson] and interpreted by the Supreme Court of the United States over decades,” he says. “An executive order can’t change that, but it can focus enforcement priorities.”

Specifically, EOs can focus enforcement priorities by the EEOC. That’s been made plain in Gardner’s profession. In March, the EEOC sent letters to 20 major law firms requesting information about their DEI-related employment practices. An EEOC press release about that action emphasized “there is no ‘diversity’ exception” to Title VII protections.

By April, the EEOC announced four large law firms had entered into settlement agreements and curtailed DEI efforts.
From following the moves of the EEOC in recent months, Gardner’s impression is that “they are aggressively looking for claims … where traditional non-minorities — white males — are saying that they suffered some form of adverse employment action on the basis of their race or gender in the context of a company pursuing a more diverse workforce.”

Puzzle pieces

In addition to ensuring that companies base hiring decisions on merit, Lucas has announced plans to boost the EEOC’s scrutiny of other types of discrimination, which she considers to be underenforced. That includes protecting workers from religious bias and from discrimination for being born in America — by employers showing preferences for immigrant workers.

She seems particularly focused on ensuring women’s rights to single-sex spaces at work, an interest that’s supported by the Trump-issued EO 14168, which states that sex refers to “an individual’s immutable biological classification” and that the federal government recognizes two sexes — male and female.

The writing is on the bathroom wall as far as EEOC enforcement, says Calli: “They are very much going to say, ‘Men go here. Women go here. You were assigned a sex at birth.’”

Ultimately, the judicial branch might have to weigh in.

“An executive order can say that the federal government only recognizes two sexes … but the federal courts are still going to enforce and interpret Title VII, subject to … all the decisions that have come before,” Gardner says.

Employers and people managers looking to stay out of the courtroom, Gardner adds, could be well-served by looking out for workplace issues where the rights of different people conflict. The EEOC, he says, might be on the hunt for incidents where, say, employees refuse to use co-workers’ preferred pronouns because of their faith.

“You want to try and find a way to navigate it without becoming the proverbial test case,” he says.

While getting their heads around all the new federal orders about employment discrimination, HR professionals must also keep state laws in mind. In the commonwealth, there’s the Virginia Human Rights Act, which safeguards citizens from unlawful discrimination in employment because of race, color, religion and a whole host of other factors.

“So even though the EEOC is doing certain things or not doing certain things, they are only one piece of the puzzle,” Calli says.

While HR professionals need to get up to speed on new developments, Calli recommends they take a breath before revamping major policies or slashing programs. Lawsuits, he points out, could be filed, challenging the executive orders.

Jamica Love, a Roanoke-based DEI consultant who works with higher education and nonprofit clients, agreed that there will probably be more guidance on workplace discrimination coming out of Washington, D.C., in the coming weeks. At the same time, she has clients who are wary of waiting too long. They don’t want to be accused of not working to ensure compliance.

“It’s a catch-22,” she says. “It’s not an easy place for folks to be right now.”

Driving forward

SHRM offers several recommendations for HR professionals looking to follow the requirements of the EOs. One is: Don’t hesitate to collaborate with legal counsel as needed.

“HR isn’t on an island to themselves,” Love agrees.

SHRM also recommends that HR executives take time to review diversity and discrimination initiatives and policies “to ensure compliance with executive orders, focusing on merit-based practices and equal access to opportunities.”

It could be a good time, Calli suggests, for HR leaders to look at materials shown to potential employees and those used with current workers to ensure messaging reinforces that effort and ability lead to career success.

“The employers who are going to remain ahead are the ones who are going to have hiring practices that focus on skill,” adds HR Virginia’s Bender.
While the term “DEI” may be in the White House’s crosshairs, Bender says, that doesn’t mean HR leaders can take a break from ensuring employees from different walks of life feel welcomed.

There’s nothing in the EOs saying human resource leaders can’t foster supportive cultures at their companies, says Bender. They are not prohibited from working “toward creating positive workplace environments where it’s living, breathing and respecting people for the true value that they bring to the roles and to the organization,” she says.

This could be a good time, according to Love, for executives to take a step back and think objectively about programs offered by the organization that are designed to build a level playing field.

One question they can ask, Love says, is “How can we revamp this so that it still feels authentic to us, but yet it doesn’t put us in a position where we might become a focal point?”

A policy or initiative might feel less risky to organizations simply by changing its name. Maybe, Love says, the term “belonging” is perfectly apt to sum up what an organization hopes to achieve.
“Takes out the ‘D,’ takes out the ‘E,’ takes out the ‘I,’” she says. “It still has that sense of ‘OK, we’ve got to talk about where people fit into organizations and spaces.’”