On January 20, 2025, President Trump issued an executive order titled, “Ending Radical And Wasteful Government DEI Programs And Preferencing.” On January 21, 2025, the President issued a similar order titled, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”
Executive Orders, Briefly. By these orders, President Trump essentially aims to eliminate discriminatory programs in the federal government, including what is referred to as “illegal” diversity, equity, and inclusion (“DEI”) and DEI and accessibility (“DEIA”) mandates, policies, programs, preferences, and activities in the Federal Government as well as “equity action plans” and DEIA performance requirements for employees and contractors. The orders also require agency provision of information to the Director of the Office of Management and Budget and revoke a number of past executive orders relating to the DEIA movement or subject.
DEI Ideology. The DEI movement, including official executive branch actions, have caused misconception and clouded vision about what the law will tolerate in this arena. DEI is an ideology or philosophy that can be applied lawfully within the workplace and in employment-related programs and activities. However, in the employment arena, where a DEI policy or practice uses protected-class status as a motivating factor for an ultimate or adverse employment decision (i.e., hiring, firing, promotion, benefit, etc.), the DEI philosophy or policy will not control in the defense of a discrimination complaint; the law will control.
Law, Briefly. Federal law (Title VII of the Civil Rights Act of 1964) expressly prohibits use of race, color, religion, sex, or national origin as a motivating factor in employment decisions. Age and disability discrimination are covered by other statutes, but similar analyses apply. A similar test also applies to claims of employer retaliation due to conduct relating to a protected-class status. The Texas Labor Code also prohibits using a protected-class status as a motivating factor in employment decisions. The Texas statute allows a defense-exception where the protected-class factor motivation is combined with objective job-related factors to attain diversity in the work force.
Employer’s Burden. It is the employer’s burden to prove that an employment decision is based on objective, non-discriminatory reasons. The employer also bears the burden to prove objective job-related factors to attain diversity, if that is the basis for an applicable employment decision based on protected-class status. Even with objective evidence as such, a fact issue can still be created on the subject such that the fact-finder (i.e., a jury in any employment-related litigation) must decide the question of whether the protected class was an unlawful, motivating factor.
Title VII of the Civil Rights Act of 1964. “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1). “Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” Id. at § 2000e-2(m) (emphasis added).
Texas Labor Code.
- Except as otherwise provided by this chapter, an unlawful employment practice is established when the complainant demonstrates that race, color, sex, national origin, religion, age, or disability was a motivating factor for an employment practice, even if other factors also motivated the practice, unless race, color, sex, national origin, religion, age, or disability is combined with objective job-related factors to attain diversity in the employer’s work force.
- In a complaint in which a complainant proves a violation under Subsection (a) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court may grant declaratory relief, injunctive relief except as otherwise provided by this subsection, and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a complaint under Subsection (a), but may not award damages or issue an order requiring an admission, reinstatement, hiring, promotion, or back pay.
Tex. Lab. Code § 21.125 (emphasis added).
To avoid violation of employment laws (or allegations of violations), an employer should consider not using (or expressly stating in a policy or management position statement that the employer uses) a protected-class status as a factor in hiring, firing, promotion, etc. In a perfect (and most lawful) world, employment decisions should be based on objective, non-discriminatory factors and reasons.
An employment policy that expressly indicates an intention to violate federal or state employment laws is cause for complaints, “whistleblows,” EEOC charges, and other adverse consequences, even if the policy is backed by good intentions to advance concepts of diversity, equity, inclusion, or accessibility in the workplace. No matter the “objective” basis or good intentions, employment decisions that use protected-class status as a motivating factor remain vulnerable to attack under federal and state employment laws.
For organizations that provide programs and benefits to participating members or industries, those programs are not so shielded by the applicable employment laws that prohibit discrimination in the workplace. However, due care should be taken as to how the organization may exclude or prefer some at the expense or exclusion of others. It is a delicate dance, but one that can be achieved to advance a lawful application of DEI ideologies.
