Making Equal Opportunity Real: How Diversity, Equity, and Inclusion Efforts Combat Workplace Discrimination

In his inaugural address on January 20, 2025, President Donald Trump declared, “We will forge a society that is colorblind and merit-based.”[1] Subsequently, President Trump issued a series of executive orders aimed at dismantling diversity, equity, and inclusion initiatives within the federal government, major law firms, and the private sector.[2] Notably, Executive Order 14173, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” rescinded longstanding affirmative action requirements for federal contractors and directed agencies to combat what it termed “illegal DEI” policies in the private sector.[3] The Equal Employment Opportunity Commission (“EEOC”) and Department of Justice (“DOJ”) later put out a “technical assistance” document indicating what the federal government views as “illegal DEI”. Though it points to a few workplace practices that could be unlawful, such as restricting employee resource group membership and separating employees by race or gender in trainings the implication is that most diversity, equity, and inclusion efforts at the workplace are perfectly legal.[4] Meanwhile, federal agencies are dismantling offices that enforce civil rights and antidiscrimination laws, thereby weakening the government’s ability to protect workers’ rights.[5]

Unfortunately, the Trump Administration’s approach will actually move us further away from a workplace that is “colorblind and merit-based.” The reason is this: women and people of color continue to face significant biases that prevent them from being judged according to their ability to work hard and do the job well. Many diversity, equity, and inclusion efforts are designed to overcome biases. Eliminating these initiatives will allow those biases to operate unchecked and expose organizations to legal risks associated with discrimination claims.

This policy brief examines the current state of workplace discrimination and demonstrates how many diversity, equity and inclusion efforts effectively address these challenges through proven strategies. Diversity, equity, and inclusion initiatives are not only consistent with the law but are often necessary to ensure compliance with it, as indicated in recent guidance from state attorneys general.[6] Indeed, many diversity, equity and inclusion initiatives emerged as measures[AF1]  to address past discrimination and promote equal opportunity. The retreat from diversity, equity and inclusion from companies misses the salience of the following realities that lawyers representing workers see every day:

• Biases against women, people of color, and others at work persist.
• Diversity, equity, and inclusion initiatives counteract those biases.
• Taking away such efforts will increase discrimination and liability risk.

1. Biases against women, people of color, and others continue to persist

Qualified Black candidates are consistently overlooked.

• At the hiring stage, white applicants receive 36% more callbacks than Black applicants and 24% more callbacks than Latino applicants, a disparity that has persisted largely unchanged for 25 years.[9]
• A  study of 108 major U.S. employers found that resumes with distinctively Black names received fewer employer contacts, despite having similar qualifications, with 21% of companies showing statistically significant discrimination against Black applicants.[10]
• This finding of a penalty for Black applicants corroborates a large body of evidence which compare the success of identical resumes with Black and white names, such as the well-known “Are Emily and Greg More Employable than Lakisha and Jamal?” study.[11]

Working mothers face discrimination.

• Resumes tend to be treated more favorably if they present a male name.[12]
• Parents who take career breaks for raising children often face discrimination when re-entering the workforce, a problem particularly affecting working mothers.[13]

Women and people of color are less likely to be promoted.

In addition to the discrimination that can take place at the hiring stage, research shows that discrimination against women and people of color happens at other stages in the workplace as well.

• Women, particularly women of color, experience significant pay gaps and underrepresentation in leadership, even when controlling for other relevant factors.[14]
• For every 100 men promoted to manager, only 89 white women and 58 Black women are promoted.[15]
• The share of Asian Americans in the workforce also decreases with greater seniority, as does their share of promotions.[16]
• Black workers are 23% less likely to receive substantial support for advancement.[17]

Gender bias harms women on performance evaluations and promotions.

Objective qualifications cannot explain why women are underrepresented in leadership positions as research indicates that women are promoted less often than men, even when controlling for factors such as education, experience, and hours worked. [18]

2. Diversity, Equity, and Inclusion Initiatives Counteract Known Biases.

Many diversity, equity, and inclusion programs directly address these documented patterns of discrimination through evidence-based strategies designed to ensure workplace outcomes are determined by merit and free from bias. This is not to say that all diversity, equity and inclusion efforts are effective. For example, the evidence supporting diversity or anti-bias training, particularly if delivered on a one-time basis or in isolation from regular workplace practices, is mixed at best.[23] However, research shows that many diversity, equity and inclusion initiatives increase fairness and opportunity in workplaces.

Broad, skills-based hiring counters existing bias.

In the hiring process, diversity, equity, and inclusion initiatives often expand outreach and recruitment efforts to reach qualified diverse candidates.[24] This often means dedicated staff and the involvement of human resources departments.

• Indeed, a recent study of major employers found that employers with more centralized points of contact during the hiring process were less likely to discriminate by not interviewing qualified Black candidates.[25]
• Research shows that after employers began specific efforts at broad-based recruiting, representation in management showed statistically significant increases for white women, Black men and women, Hispanic women, and Asian American men and women.[26]
• Employers with employee resource groups are even more effective at recruiting qualified candidates from diverse backgrounds, as these groups take charge of making sure recruitment happens.[27]
• Furthermore, hiring practices structured to emphasize necessary skills and qualifications, rather than subjective impressions, maximize the chances that selections are fair.[28]

Diversity officers help minimize discriminatory hiring.

• To reinforce these efforts, the appointment of diversity, equity, and inclusion officers promotes accountability for anti-discrimination practices across an organization.[29]
• Research shows that diversity managers and diversity, equity, and inclusion task forces are some of the most effective mechanisms for driving fair workplace reforms.[30]

Pay audits and structured evaluations can remedy bias.

• Regular pay audits are also essential for identifying compensation disparities, particularly those based on gender and race.[31] These audits are particularly important as discriminatory practices can compound over time through biased performance evaluations.
• Women at work are in a “double bind”: they are penalized more than men for being too aggressive, and yet also penalized for not being aggressive enough.[32]
• Organizations should implement structured evaluation systems that use clear, job-specific criteria and emphasize measurable contributions over subjective assessments.[33]

Formal mentorship programs help prevent discrimination in promotions.

• Women and people of color are at a disadvantage in getting promotions because they are less likely to be sponsored by white men in senior positions.[34]
• Research demonstrates that more formal programs lead to significant increases in the representation of Black women, as well as Latino and Asian American men and women, in management positions.[35]
• In-house management training programs and transparent nomination processes further enhance workforce diversity and increase diverse representation in leadership roles.[36]
• Additionally, tracking the distribution of high-impact projects and leadership opportunities ensures fair access to career advancement.[37]
• Furthermore, inclusion efforts encompass a wide range of practices such as providing physical accommodations like ramps, offering parental leave policies, and creating spaces for religious practices like prayer rooms. These measures both support workers and help an organization comply with equal opportunity laws.

3. Ceasing Diversity, Equity, and Inclusion Initiatives Will Increase Discrimination and Liability Risk.

Removing diversity, equity, and inclusion initiatives allows biases to operate unchecked, increasing the likelihood of discriminatory practices and thus the risk of legal liability. Moreover, the activities around walking back such initiatives themselves may be used as evidence against employers in discrimination litigation, as illustrated by the examples below.

Evidence of discriminatory intent or causation.

Plaintiffs’ attorneys may use corporate decisions to abandon diversity, equity, and inclusion efforts as evidence of bias or discriminatory intent.  Consider, for example, a case where a company ended a program to recruit from historically Black colleges and universities shortly before they declined to interview a well-qualified candidate from such a school. If that candidate were to bring a Title VII disparate treatment claim, they would have a strong claim that the decision to end the program is evidence of racial bias.

Executives questioning the value of diversity, equity, and inclusion initiatives may also signal bias, allowing a jury to infer that an employment decision was made “because of” race, gender, or another protected trait.

• A clear recent example is Meta’s CEO Mark Zuckerberg who—at a time when he was rolling back diversity, equity and inclusion initiatives—said publicly that he thought companies had become “culturally neutered” and needed more “masculine energy.”

Undermining “reasonable care” in harassment claims.

Under Title VII, employers are required to demonstrate that they exercised reasonable care to prevent and correct workplace harassment, or else face liability. The case law underscores that the overall work environment is crucial; a retreat from diversity, equity, and inclusion initiatives can signal a decline in workplace culture, much like how the court found the employer’s superficial anti-harassment policy in Faragher inadequate despite having a policy.[38]

• Eliminating employee resource groups that provide critical support and information to people who may be reluctant to complain can be evidence of a lack of reasonable care. These groups contribute significantly to workplace inclusion by fostering community-building and trust among workers.[39] Moreover, they often provide safe spaces for women and workers of color to voice concerns, fostering trusting relationships, and, when necessary, help raise awareness of harassment policies among individuals who may be hesitant to report misconduct, even when directly affected.[40]
• Some companies have stopped submitting information to public indexes to benchmark their progress on diversity, equity, and inclusion related goals. This could also be used as evidence of a lack of reasonable care.
  • For example, the Human Rights Campaign Foundation reviews policies designed to promote workplace equality, such as whether companies include sexual orientation and gender identity in their nondiscrimination policy. If companies stop participating and that leads to not taking certain measures to prevent discrimination and harassment, that would be important evidence for an LGBTQ+ employee to show that the employer failed to use “reasonable care” to create a safe and inclusive work environment.

Settlements often include equity and inclusion measures.

Recent settlements illustrate a critical point: if companies walk back diversity, equity, and inclusion measures, they may be compelled to reinstate or expand such initiatives as part of future settlements—but only after paying significant damages for the discrimination that takes place in the interim.

• For example, in 2023, a judge approved a $215 million settlement against Goldman Sachs in a sex discrimination case stemming from the company’s use of biased evaluation metrics. As part of the settlement, Goldman Sachs was required to revise its performance evaluation and promotion processes by measures such as requiring that managers discuss job-relevant criteria for promotion with Vice Presidents who report to them, mandating written manager feedback for all employees, and conducting an annual pay equity analysis overseen by an independent labor economist–initiatives that fall squarely underthe diversity, equity, and inclusion umbrella.[41]
• Similarly, Disney agreed to a $43.3 million settlement in 2023 to resolve gender pay discrimination claims and the equitable relief included retaining a labor economist to analyze and address pay equity.[42]

By proactively maintaining robust diversity, equity, and inclusion programs, employers can avoid the costly and disruptive process of being ordered to implement these measures under legal scrutiny.

Conclusion

From structured hiring processes and formal mentorship programs to pay audits and employe resource groups, many diversity, equity, and inclusion initiatives provide essential tools for creating fair and legally compliant workplaces. As attempts to restrict these programs increase, it is crucial to recognize that diversity, equity, and inclusion practices work to counteract biases against qualified women, people of color, and others that would otherwise prevent them from being considered on their merits. The EEOC and DOJ have recently issued guidance that implicitly acknowledges that most such efforts are perfectly lawful. So rather than abandoning these efforts, organizations should strengthen them, knowing that they are both legally sound and smart business. The path to truly merit-based workplaces includes active measures to ensure all qualified individuals have genuine opportunities to contribute and succeed.

Notes

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[1] Kimberley Richards, Trump Promoted This Disputed Racial Theory In His Inaugural Speech. Here’s Why It Doesn’t Work., HuffPost (Jan. 21, 2025), https://www.huffpost.com/entry/donald-trump-inauguration-speech-colorblind_l_678fef6ee4b0b9429ede0f6f.

[2] Exec. Order No. 14,173, 90 Fed. Reg. 8633 (Jan. 31, 2025), https://www.whitehouse.gov/presidential-actions/2025/01/ending-illegal-discrimination-and-restoring-merit-based-opportunity/; Exec. Order No. 14,230, 90 Fed. Reg. 13997 (March 25, 2025), https://www.whitehouse.gov/presidential-actions/2025/03/addressing-risks-from-jenner-block/.

[3] Id.

[4] Equal Employment Opportunity Commission, What To Do If You Experience Discrimination Related to DEI at Work (March 19, 2025), https://www.eeoc.gov/what-do-if-you-experience-discrimination-related-dei-work.

[5] Julian Mark, Hannah Natanson & Danielle Abril, Trump Officials Start Dismantling Civil Rights Offices, The Washington Post (Feb. 28, 2025) https://www.washingtonpost.com/nation/2025/02/28/doge-trump-civil-rights-office-closing-eeoc/.

[6] Attorneys General of Massachusetts & Illinois, Guidance Regarding Diversity, Equity, Inclusion, and Accessibility Employment Initiatives (Feb. 13, 2025), https://www.marylandattorneygeneral.gov/News%20Documents/021325_DEI_Guidance.pdf.

[7] Rachel C. Schneider et al., How Religious Discrimination is Perceived in the Workplace: Expanding the View, Socius, 8 (Jan. 24, 2022), https://doi.org/10.1177/23780231211070920; Lincoln Quillian & John J. Lee, Trends in Racial and Ethnic Discrimination in Hiring in Six Western Countries, 120 Proc. Natl. Acad. Sci. U.S.A. 6 (Jan. 31, 2023), https://doi.org/10.1073/pnas.2212875120; Brad Sears et al., LGBTQ People’s Experiences of Workplace Discrimination and Harassment, The Williams Institute (Aug. 2024), https://williamsinstitute.law.ucla.edu/publications/lgbt-workplace-discrimination/#:~:text=Discrimination%3A%20About%20one%20in%20five,some%20point%20in%20their%20lives.

[8] Jenny R. Yang and Pamela Coukos, Trump’s DOJ Can’t Rewrite the Law on DEI, Fortune (Feb. 20, 2025), https://fortune.com/2025/02/20/trump-dei-law-companies/ (citing EEOC Press Release, January 17, 2025).

[9] Lincoln Quillian, Devah Pager, Ole Hexel, & Arnfinn H. Midtbøen, Meta-Analysis of Field Experiments Shows No Change in Racial Discrimination in Hiring Over Time, 114 Proc. Nat’l Acad. Sci. U.S.A. 10870, 10870 (Sept. 12, 2017), https://doi.org/10.1073/pnas.1706255114.

[10] Patrick Kline, Evan K. Rose & Christopher R. Walters, Systemic Discrimination Among Large U.S. Employers, 137 Q.J. Econ. 1963, 1963 (2022), http://doi.org/10.1093/qje/qjac024.

[11] Marianne Bertrand & Esther Duflo, Field Experiments on Discrimination, in Handbook of Economic Field Experiments 309 (Abhijit Vinayak Banerjee & Esther Duflo ed., 2017).

[12] Deborah L. Rhode, Ambition: For What? 101 n.79 (2021).

[13] Ariella S. Kristal, Leonie Nicks, & Jamie L. Gloor et al., Reducing Discrimination Against Job Seekers with and Without Employment Gaps, 7 Nat. Hum. Behav. 211 (2023), https://doi.org/10.1038/s41562-022-01485-6.

[14] Alexis Krivkovich et al., Women in the Workplace 2024: The 10th-Anniversary Report, McKinsey & Company, 8 (Sept 17, 2024), https://www.mckinsey.com/featured-insights/diversity-and-inclusion/women-in-the-workplace#/; Rhode, at 101 n. 79.

[15] Id.

[16] Michael Chui et al., Asian American Workers: Diverse Outcomes and Hidden Challenges, McKinsey & Company (Sept 7, 2022), https://www.mckinsey.com/featured-insights/diversity-and-inclusion/asian-american-workers-diverse-outcomes-and-hidden-challenges#/.

[17] Bryan Hancock et al., Race in the Workplace: The Black Experience in the US Private Sector, McKinsey & Company (Feb. 21, 2021), https://www.mckinsey.com/featured-insights/diversity-and-inclusion/race-in-the-workplace-the-black-experience-in-the-us-private-sector.

[18] Rhode,at 101 n. 79.

[19] Alice H. Eagly, Female Leadership Advantage and Disadvantage: Resolving the Contradictions, 31 Psychol. Women Q. 1 (2007), https://doi.org/10.1111/j.1471-6402.2007.00326.x.

[20] Karen S. Lyness & Donna E. Thompson, Climbing the Corporate Ladder: Do Female and Male Executives Follow the Same Route?, 85 J. Applied Psychol. 86 (2000), https://doi.org/10.1037/0021-9010.85.1.86.

[21] Rhode, at 108.

[22] Shelley J. Correll, Katherine R. Weisshaar, Alison T. Wynn & JoAnne D. Wehner, Inside the Black Box of Organizational Life: The Gendered Language of Performance Assessment, 85 Am. Soc. Rev. 1022, 1022 (2020), https://doi.org/10.1177/0003122420962080.

[23] Frank Dobbin & Alexandra Kalev, The Civil Rights Revolution at Work: What Went Wrong, 47 Ann. Rev. of Socio. 281, 288 (2021), https://doi.org/10.1146/annurev-soc-090820-023615.

[24] Frank Dobbin & Alexandra Kalev, The Civil Rights Revolution at Work: What Went Wrong, 47 Ann. Rev. of Socio. 281, 281 (2021), https://doi.org/10.1146/annurev-soc-090820-023615.

[25] Id.

[26] Alexandra Kalev & Frank Dobbin, Retooling Career Systems to Fight Workplace Bias: Evidence from U.S. Corporations, 153 Daedalus 213, 221 (2024), https://doi.org/10.1162/daed_a_02056.

[27] Kalev, 221.

[28] Joan Williams et al., Traditional Bias Training Doesn’t Work; Bias Interrupters Do, The Conference Board, 6-7 (June 24, 2024), https://www.conference-board.org/publications/traditional-bias-training-does-not-work-bias-interruptors-do.

[29] Dobbin, at 290.

[30] Id.

[31] Lisa Nagele-Piazza, The Importance of Pay Equity, Society for Human Resource Management (Feb. 21, 2021), https://www.shrm.org/topics-tools/news/hr-magazine/importance-pay-equity.

[32] Anyi Ma et al., Reconciling Female Agentic Advantage and Disadvantage with the CADDIS Measure of Agency, 107 J. Applied Psychol. 2115 (2022).

[33] Williams, at 8-10.

[34] Julia Taylor Kennedy & Pooja Jain-Link, Sponsors Need to Stop Acting Like Mentors, Harvard Business Review, (Feb. 26, 2019), https://hbr.org/2019/02/sponsors-need-to-stop-acting-like-mentors  (“We also found evidence of “mini-me syndrome” — sponsors reported a tendency to select protégés who reminded them of themselves. A full 71% of self-identified sponsors said that their protégé shares their same gender or race.”)

[35] Dobbin, at 289-290.

[36] Id.

[37] Id. at 11.

[38] Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

[39] Matthew Leger, Building High-Trust Workplaces: The Role of Employee Resource Groups in Fostering Stronger Employee-Employer Relationships, Am. Enter. Inst., 3-4 (Dec. 2023), https://www.jstor.org/stable/resrep55292.

[40] Leger, at 3-4.

[41] Michelle Chapman, Goldman Sachs Settles Gender Discrimination Suit for $215 Million, The Associated Press (May 9, 2023), https://apnews.com/article/goldman-sachs-settlement-gender-equity-b9373d369cb70165565ec83abe03b8c3?utm_source=copy&utm_medium=share.

[42] Meg James, Disney Agrees to Pay $43 Million to Settle Lawsuit Over Women’s Pay, Los Angeles Times (Nov. 26, 2024), https://www.latimes.com/entertainment-arts/business/story/2024-11-26/disney-agrees-to-pay-43-million-to-settle-lawsuit-over-womens-pay.