(This column originally appeared in The Washington Times)
Diversity, Equity and Inclusion has become much more complicated, hasn’t it?
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. 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.
And then things snapped.
DEI, as in most human endeavors, went too far. 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.
People were sick and tired of DEI. Thanks to this and several other factors that are too lengthy to address in this column, they elected Donald Trump as president. He acted on their wishes in his first 100 days.
Within days of his inauguration, Mr. 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.”
Critics have complained that these documents are confusing and do not fully clarify the meaning of discrimination, but that’s not true. 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.
“Diversity, Equity, and Inclusion (DEI) is a broad term that is not defined in the statute,” the EEOC and Justice Department said. “Under Title VII, DEI policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated, in whole or in part, by an employee’s race, sex, or another protected characteristic.”
Labor lawyers and human resources experts are in a tizzy, and so are their clients. Everyone is trying to figure out what to do. They’re reviewing their recruiting processes, reimplementing merit-based practices, reconsidering their race-based goals and bringing in more trainers. They’re 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.
Besides, do good leaders of good companies need to advertise that they’re such good people that they promote diversity, equity and inclusion? Of course not. We understand the benefits of DEI. We want different voices, varied opinions and unique points of view. Wise leaders know that a diverse workforce adds value to a company. We don’t need NPR telling us that. We don’t need mandates, requirements and restrictions. We also don’t need to virtue signal by promoting how we’re saving the world with our generous and warmhearted DEI policies. We practice DEI at our businesses all the time. Why? Because it can be profitable if done right.
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 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. This doesn’t need to be in writing. It should just be in practice.
“The best practice for employers is to hire based on merit for an available position, regardless of race or age or religion or national origin,” said Claude Schoenberg, a labor lawyer near Philadelphia. “That’s the real takeaway of this administration’s actions.”
He’s right. The best DEI policy is no policy.
