The Trump administration's executive order attempting to stop diversity, equity and inclusion training faces resistance from businesses and in court.
In September, the White House issued an executive order labeling diversity, equity and inclusion (DEI) training as divisive and all but banning its use by government agencies and contracting firms. DEI training "perpetuates racial stereotypes and division and can use subtle coercive pressure to ensure conformity of viewpoint," the order stated.
The order has teeth. Businesses risk losing their federal contracts if they violate it. Business groups wrote the president in opposition. One group, The American Hospital Association, said the order "would effectively reverse decades of progress in combating racial inequality."
A lawsuit filed Thursday by the National Urban League and others alleges the order violates the U.S. Constitution.
"Every nation's history includes unsettling truths that many would prefer to forget or deny," the lawsuit argues. But "without uninhibited discussion and examination of that legacy, we are ill-equipped as a nation to address its ongoing manifestations in present-day forms of discrimination and bias."
Some firms have been conducting DEI training for decades, and others are new to it, said Farzana Nayani, a DEI consulting and training expert in Los Angeles. Employees are also seeking action. They are voicing concerns about a lack of representation across companies and particularly in leadership, she said.
Farzana NayaniDEI consulting and training expert
One HR practice gaining ground is people analytics that combines HR data, such as performance and tenure, with demographic data to find weaknesses in diversity and inclusion strategies.
A firm can make a point of hiring women, but if those employees don't rise in the ranks, there's a problem, Nayani said. "You sit on this cushion, thinking you are diverse and inclusive when you are not," she said.
The initial reaction to Trump's order among DEI consultants and advocates was disappointment and concern it might make their work harder, according to Nayani. But the opposition is proving to be galvanizing, she said. "I think it has deepened the commitment" for DEI training, she said.
Government contracting at risk
Trump's executive order doesn't bar DEI training. But a business can lose its government contracts if it runs afoul of the order -- and that may be easy to do. The White House guidance says, for instance, "unconscious bias" training, which many companies are now embracing, may be a "divisive concept."
"Mainstream society is beginning to wake up to the big picture of systemic discrimination," said Tolonda Tolbert, co-founder and head of strategy and culture at Eskalera Inc., an employee experience and organizational analytics firm in San Francisco.
Tolbert was a keynote speaker at the HR Technology Conference & Expo last week. She made the moral and business case for DEI training.
"As society grapples with the inequities that divide people along the lines of race, gender, orientation," Tolbert said, "companies are being forced to confront their practices through a lens of diversity, equity and inclusion" at all levels of an organization.
With respect to Trump's executive order, the advice to employers from Squire Patton Boggs, a law firm, is to "sit tight" and see what Tuesday's election brings.
"We may see a shift in the requirements (or even the existence) of the executive order itself based on the election results," the law firm wrote in its client analysis of the order.