The recipe for a terrifying monster is complex but somewhat formulaic. First, you have to be attached to something precious like your kid, a friend, or your values that could be threatened by the monster. Then you might add a dash of uncomfortable, a bit of scary, some upset or disgust, definitely a moment or two of hopelessness and even grief. Best, perhaps, is to incorporate elements of confusion and unpredictability so all those awful feelings are anxiously brewing at once, even when the monster is not present. Lastly, surprising plot twists are bound to happen.
People do not work well when this kind of anxiety is brewing. It distracts us from our purpose and creates self-doubt, insecurity, and distrust. People and monsters do not make for a good pairing.
In many ways, the current national discussion about DEI (Diversity, Equity, Inclusion) is akin to a monster. Some have summed it up as a DEI ban. Others believe it means we are no longer allowed to speak about race at all. Does it apply to nonprofits or foundations? Does it apply to all workplaces? What about private spaces like companies or homes?
So, how did we get here? The attachment might be about the freedom of being ourselves, for our families to live out our values, or even for American democracy to persist. It is clear everyone has something precious at stake. Moreover, legal issues like affirmative action, the Fearless Fund case, and the new onslaught of executive orders are challenging to fully comprehend, but easily cause emotional reactions. This has led to confusion and uncertainty in communities and organizations that care deeply about belonging, dignity, and love for all. In LLC’s work, a terrifying plot twist is that we, the social good sector, can unintentionally add fuel to a monster we’re fighting by getting facts mixed up, preemptively conforming to rhetoric and not law (e.g., anticipatory obedience) or even by losing sight of joy or purpose in our leadership.
Next, what is it, actually? DEI is generally a workplace program, but diversity, equity, and inclusion (and justice, belonging, equality, etc.) are terms often used to describe the values and principles we might hold at and beyond work.
- Past DEI workforce conversations and programs might have been driven by discrimination in the workforce illuminated by labor market discrimination studies, the visible lack of leaders of color or women in c-suites and board rooms, or to proactively mitigate risks of violation of laws like the Equal Pay Act of 1963, the Civil Rights Act of 1964, and the American Disabilities Act of 1990.
- In recent years, DEI programs may have also been necessitated by what was hurting and happening in our communities, including the mass outcry from repeated law enforcement bias and discrimination that has resulted in extreme violence and death of Black people, people of color, and even our children (here’s more on racial disparities in policing). There was also discrimination, hate crimes, and gender-based violence everywhere in between (i.e., Post 9-11 discriminatory backlash, #metoo, LGBTQ+ shootings, arson at Black churches, anti-Asian hate, and more).
Prior to companies adopting broad DEI programs, they still needed to comply with State and Federal anti-discrimination laws. As more companies adopted DEI values and implemented related programming to address discrimination in the workforce proactively, they also noted how reflecting their consumer base and communities benefited their bottom line (see PEW Research on DEI; Companies who know DEI is good for business). At the same time, a few companies have received reverse discrimination lawsuits (see Young v. Colorado Department of Corrections, et al. 10th circuit 2024).
In 2025, DEI-related conversations have been driven by legal challenges and inflated by rhetoric and political agendas. The legal issues are mostly about discrimination lawsuits that claim DEI programs disfavor a person, typically a white worker, to the point of discrimination under the law. According to the Advancing DEI Initiative, a project of the Meltzer Center for Diversity, Inclusion, and Belonging, there were under 50 direct legal challenges with varying results to workforce DEI training and programs in 2024. Yet, on January 20, 2025, an executive order was signed by President Trump that broadly stated without references to data, research, examples, or laws that DEI programs are “illegal and immoral discrimination programs.” This executive order is currently being challenged in court for being overly broad, vague, an overreach of executive powers, causing a chilling effect on free speech, infringing on due process by forcing organizations to adopt the administration’s view regarding DEI, violating the equal protection act, and more (see here, here, and here).
Here’s a deeper dive on relevant laws and cases:
- The First Amendment of the Constitution of the United States recognizes free speech as a right.
- The Fourteenth Amendment of the Constitution of the United States’ Equal Protection Clause establishes that no state can deny equal protection of the law to any person within its jurisdiction.
- The Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex, and national origin. It applies to public education, public accommodations, programs that receive federal funding, voting rights, and employment. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination, including in hiring, promotions, pay, training, and termination. The Voting Rights Act of 1965 further strengthened protections against racial discrimination in voting. The Fair Housing Act of 1968, as amended, prohibits housing discrimination on the basis of race, religion, national origin, sex, disability, and familial status. These laws were passed during the civil rights movement of the 1960s and expanded upon post-Civil War laws, such as the 14th Amendment to the US Constitution (including due process and equal protection) and the Civil Rights Act of 1866 (“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens…”). In addition to these federal civil rights laws, most states have their own civil rights statutes that, in some cases, are more protective than their federal counterparts.
Case laws.
- Affirmative action case law: City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989); Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (June 12, 1995); Fair Admissions, Inc. v. President and Fellows of Harvard College (June 29, 2023). These cases begin to establish that quota systems that benefit a group of people may cause discrimination against others. The most recent case overturned previous precedent and found more boldly that race-conscious affirmative action, that is, using race as one consideration, is unconstitutional. Read the Lawyers Committee for Civil Rights’ explainer here.
- Contract case law: American Alliance for Equal Rights v. Fearless Fund Management, LLC (June 3, 2024). The Freedom Fund case was about a company’s ability to offer grants (which are contracts) to organizations that are 51% Black women-owned. They settled the case and shut down the grantmaking program. Read more about this case and its effects on nonprofits here.
- Workplace discrimination case law: There are many cases brewing in lower courts like Young v. Colorado Department of Corrections, et al. (10th circuit 2024), which states “…race-based training programs can create hostile workplaces when official policy is combined with ongoing stereotyping and explicit or implicit expectations of discriminatory treatment…But Mr. Young does not allege that the training occurred more than once—let alone an ongoing presence permeating the workplace. Nor does he allege any race-based harassing conduct, ridicule, or insult from either his co-workers or his supervisors within his workplace that occurred as a result of the training.”
Executive orders have been used to address discrimination in the past, and currently, though the intent of the last one differs vastly from the others:
- Order Executive Order 8802 of June 25, 1941(Roosevelt), Reaffirming Policy of Full Participation in the Defense Program by All Persons, Regardless of Race, Creed, Color, or National Origin, and Directing Certain Actions in Furtherance of Said Policy.
- Executive Order 13583 of August 18, 2011 (Obama), Establishing a Coordinated Government-Wide Initiative to Promote Diversity and Inclusion in the Federal Workforce.
- Executive Order 13985 of January 20, 2021 (Biden), Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.
- Executive Order 14151, signed January 20, 2025 (Trump), Ending Radical and Wasteful Government DEI Programs and Preferencing states, without reference to data, research, or examples, that DEI programs create discrimination. This order is directed at the federal government and has also reached beyond to the contractors that work with federal agencies. Here is an early explainer of this executive order by the Meltzer Center. Here, Alliance for Justice offers guidance on what nonprofits can do.
This is not a comprehensive history of civil rights laws and protections against discrimination, but we hope it brings clarity to the current DEI discussions. As a learning community, we are providing this history, information, and direct links to the original sources and explainer articles so you can pursue them and dig deeper into the area you’re most interested in as well. If there is a perceived risk to your organization, we encourage you to reach out to an attorney for legal advice and guidance on your programs.
Lastly, it is true that there are deliberate development of case laws and executive actions designed to eliminate the ability of our government to address a discriminatory marketplace. It is true that there are trickle-down effects on private businesses and nonprofit organizations, whether it is through employment laws, contract laws, or the elimination of federal funding. What is happening is extremely unsettling, and it is not as deep as our joy, care, love, and journey toward collective liberation.
Here are some offerings:
- If you are in an institution that has decided you need to stop saying diversity, inclusion, equity, race, gay, gender, women, BIPOC, etc., consider saying something else rather than nothing at all about your core values and principles. Here are legal DEI communication tips posted in the Harvard Business Review on February 11, 2025.
- Study and practice liberatory leadership. It has been a way to deepen and go beyond equity. Check out resources at www.liberatoryleadership.org, read on wisdom from over 16 leaders in our latest report, Leadership and Race: A Call to Each Other, and our sneak peek at the Liberatory Leadership Framework.
- One great way to interrupt this monster-making is to talk about it, find clarity together, banter in best practices, and understand what we have energy for as individuals, organizations, and beyond. Host a party, gather your team or friends, and keep making meaning of what it means to build bright possibilities for our communities.
Photo by Tim Mossholder on Unsplash
