Frequent Questions from HR Professionals About DEI EOs Answered

HR professionals still have many questions about how to make inclusion and diversity programs compliant after the January diversity, equity and inclusion (DEI) executive orders (EOs) — questions presenters at a recent SHRM webinar sought to answer. 

Although some aspects of one of the DEI EOs — including its application to private companies — have been temporarily blocked by a district court, that decision is being appealed and the injunction has recently been lifted while litigation continues. In addition, the U.S. Equal Employment Opportunity Commission’s Acting Chair Andrea Lucas has said she has prioritized, consistent with the DEI orders, “rooting out unlawful DEI-motivated race and sex discrimination.”

EO Impact Zone

Common Questions

The most common question from HR in response to the DEI EOs has been what’s illegal under the orders, said Jim Link, SHRM-SCP, SHRM chief human resources officer.

“That’s the question of the day,” said Anuradha Hebbar, J.D., president of SHRM CEO Action for Inclusion & Diversity. What clearly is prohibited is preferential treatment, which Title VII of the Civil Rights Act of 1964 “never allowed in the first place,” she said. 

Another frequent question from HR about the EOs is their effect on implicit bias.

Equal employment opportunity (EEO) laws “prohibit discrimination full stop,” Hebbar said. Training on implicit bias is still permitted as long as the training is done correctly to benefit everybody, she added. The training is “not about fixing humans; it’s about fixing processes,” including recruiting, promotion, and retention, Hebbar said.

Unconscious bias training should be implemented to solve disparities, said Tamla Oates-Forney, CEO of SHRM Linkage.

Do employers have to excise the mention of EEO or reasonable accommodations from their job postings? Link asked, noting this was a common question from HR in response to the orders.

The EEO statement still aligns with anti-discrimination laws, but affirmative action statements are more complicated, Oates-Forney explained. One of the DEI EOs rescinded a prior order that had required federal contractors to practice affirmative action by race and gender. However, affirmative action requirements based on disability and veteran status remain in place by law. To complicate things further, state and local laws may mandate affirmative action. She recommended that employers seek counsel in the states where they operate.

HR has also wondered what kind of terminology changes in response to the EOs might raise red flags. 

Employers need to evolve to solve, Hebbar said. Changing the terminology of a program won’t work if Title VII is still violated. For example, an employer shouldn’t rename a program but continue to offer that program only to certain groups, she explained.

What about collecting data based on race; is that still allowed? 
For employers that have to submit EEO-1 reports, it clearly is, Oates-Forney noted. But she cautioned companies against collecting data just to collect it.

BEAM Framework

Link said the best way for employers to comply with the DEI EOs is to follow SHRM’s BEAM Framework, explaining that it stands for Belonging Enhanced by Access through Merit.

Merit should be the primary lens for every HR action, he said, pointing out it was highlighted in the EOs.

The second primary principle is access over identity.

Thirdly, there should be continuous collaboration.

And fourthly, employers should operationalize inclusion. 

BEAM Framework

SHRM has developed five questions organizational leaders should answer when reviewing current or potential inclusion-related practices and programs, Link said:

• Anti-exclusion: Are the program’s opportunities open to all without regard to an individual’s sex, race, or any other protected status? 
• Access for all: Does the program generate opportunities to participate based on an individual’s requisite merit, including their existing skills and proficiencies? 
• Merit-driven: Does the program select individuals to participate based on relevant qualifications while accommodating protected medical conditions and religious practices?  
• Unbiased and available information: Is the availability of the program effectively communicated to all individuals so that participation is truly open to all?  
• Skills-first optimization: Does the program provide opportunities to develop relevant skills, qualifications, and experience for all individuals eligible to participate?

Title VII’s Ongoing Importance

Courts are considering different scenarios in response to the EOs, and it’s a time of “uncertainty and ambiguity,” Hebbar said. 

However, she emphasized that Title VII is still in effect and that the law is important for HR to understand. “Go back to the fundamentals of HR and compliance,” she recommended, saying businesses that do that should “be just fine.”

There’s been “a lot of noise” about the EOs, Hebbar said. Now is an opportunity, she added, for HR to help lead.

Effective Inclusion and Diversity Programs