While properly implemented DEI programs remain permissible under Title VII and other applicable laws, recent legislation proposed by Senate and House Republicans would seek to eliminate any such programs sponsored or supported by the federal government. On June 12, 2024, twenty-two members of Congress, led by Ohio Senator J.D. Vance (Donald Trump’s vice-presidential candidate in the 2024 election) introduced the Dismantle DEI Act of 2024 (the “Act”). With respect to the Act, Senator Vance stated, “The DEI agenda is a destructive ideology that breeds hatred and racial division. It has no place in our federal government or anywhere else in our society.” The proposed legislation seeks to eliminate all federal DEI programs and funding for federal agencies, contractors which receive federal funding, organizations which receive federal grants, and educational accreditation agencies. Although the Act would not apply to the private sector, the federal government remains the nation’s largest employer and the Act would impact a workforce of over four million employees.
The prevailing aim of the Act is to eliminate “prohibited diversity, equity, and inclusion practice” across the federal government. The Act organizes “prohibited diversity, equity, and inclusion practice” into three categories:
- “discriminating for or against any person on the basis of race, color, ethnicity, religion, biological sex, or national origin;”
- requiring that an employee “undergo training, education, or coursework” that “asserts that a particular race, color, ethnicity, religion, biological sex, or national origin is inherently or systemically superior or inferior, oppressive or oppressed, or privileged or unprivileged;” or
- (3) requiring the “signing of or assent to a statement, code of conduct, work program, or plan…by the employee that a particular race, color, ethnicity, religion, biological sex, or national origin is inherently or systemically superior or inferior, oppressive or oppressed, or privileged or unprivileged.”
The Act also calls for the rescission of several executive orders and memorandum relating to prohibited DEI practices, including orders on the advancement of racial equity and underserved communities (Executive Order 13985, 14091), the prevention of discrimination based on gender identity or sexual orientation (Executive Order 13988), and the establishment of DEI in the federal workforce (Executive Order 14035). Under the Act, any program or office carrying out such orders or memorandum must “close, terminate, and wind up” with no possibility to “transfer, reassign, or redesignate any employee or contractor with a position or function” eliminated by the Act.
In addition, the Act would stop the use of federal funds in any agency, or used by a federal contractor, for the purpose of maintaining an “office relating to diversity, equity, inclusion, or accessibility” (“DEIA) or a “substantially similar office.” This means that the Act would revoke all DEI funding at the Department of Defense, Department of Homeland Security, Department of Health and Human Services, and other federal agencies. Federal agencies and contractors would no longer be able to use federal funds for activities like maintaining a chief diversity officer, implementing certain employee affinity groups, or distributing DEI training courses. Similarly, federal contractors would have to ensure that no part of their federal contract was performed “under working conditions or in a working environment, provided by or under the control or supervision of a contractor or any subcontractor who is subject to, or required to comply with, a prohibited diversity, equity or inclusion practice.” Notably, the proposed law does not reconcile how the Act would impact federal contractor requirements pursuant to Executive Order 11246, which requires federal contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment.
If enacted, the Dismantle DEI Act of 2024 has the potential to completely deconstruct DEI practices and programs across the federal workplace. Under a second Trump Administration, the passage of such legislation is feasible, if not foreseeable.
As noted above, efforts to foster inclusive and diverse workplaces continue to be legal in the public and private sector today. As the law continues to evolve, private employers may become increasingly concerned with how to properly invest in DEI programs. To protect workplace DEI efforts, several best practices can be implemented, including, for example, avoiding race-based quotas or making decisions solely based on race, which has always been prohibited under Title VII.
For questions about your specific workplace’s diversity, equity, and inclusion trainings, or any other issues related to diversity, equity, and inclusion in the workplace, contact Erik Eisenmann, Catarina Colón, Kierra Powell, or your Husch Blackwell attorney.
Written with the assistance of McKale Walker, a summer associate in Husch Blackwell’s Denver office.