Can Trump actually ban DEI? The confusion is the point

In the elite boardrooms of corporate America, executives have either slashed or completely abandoned workplace policies promoting diversity and inclusion in the wake of President Donald Trump’s executive order calling the programs “illegal discrimination.”

The swiftness of the reversals brings to mind the image of the executive order as a gunshot, booming through a meadow, and American executives as a herd of startled deer, rushing to ensure they’re complying with the gunholder’s wishes.

The confusion may have been the point, legal experts told Salon. Regardless of what powers Trump may claim, American presidents don’t have the power to deem something “illegal” and, with the stroke of a pen, have that thing suddenly go against U.S. law and become subject to punishment.

“I don't purport to be inside the heads of people that are issuing these orders, but it seems to me that their intention is more messaging than it is actually changing the law,” Emily Berman, a constitutional scholar and law professor at the University of Houston, told Salon. “The result of this kind of thing is to, really, intimidate people.”

Trump’s executive order, which threaten to investigate private and public businesses engaging in “illegal DEI,” leave companies in the unenviable position of either complying with existing Civil Rights-era federal diversity protections and avoiding anti-discrimination lawsuits, or obeying the edicts of a famously vindictive and volatile president.

Companies are banned from deciding whether to employ people based on race, sex, age or other protected characteristics under Title Seven of the Civil Rights Act, signed into law in 1964.

“Nothing that Donald Trump, or Stephen Miller, or anyone else says changes the meaning of the law, and that is true for this executive order as well,” Jason Solomon, director of the National Institute of Workers' Rights, told Salon.

Businesses responded to the law in part by introducing workplace diversity programs intended to boost the number of women and non-white employees in predominately white, male-dominated workplaces. At the time, around a third of American women were employed, and women represented about a third of the labor force. Black Americans held just 12% of the number of jobs held by white Americans.

Programs intended to help companies recruit and retain historically underrepresented workers — like women’s mentorship programs, or employee resource groups for employees of a specific race or sexual orientation — have typically been supported, at least publicly, by presidential administrations of both parties. But today’s Republican party demonizes those groups, citing them as evidence that the political left will do anything to appeal to its special interest groups, even if that means forcing companies to hire — and here’s the subtext that’s rarely said aloud — un- or under-qualified people who otherwise wouldn’t get the job over a qualified white man.

“What critiques of D.E.I. tend to imply, but never quite openly say, is that competent white people are being replaced with incompetent Black people,” Keeanga-Yamahtta Taylor wrote in The New Yorker.

But many of the protections that Trump has placed under the broader umbrella of “illegal DEI” — such as auditing employees’ pay, considering diverse applicant pools and not firing or promoting employees based on their race or gender — have existed in American workplaces for decades as a result of Title Seven, to ensure companies are in compliance with federal law. Abandoning those policies might put companies at risk of violating existing federal law, some legal experts have said, giving employees legal grounds to file a lawsuit against their employer.

“The risk right now is that companies listen to Trump and Stephen Miller too much, and think that there's this big litigation risk from having diversity equity and inclusion initiatives,” Solomon said. Companies that “underestimate” the risks of removing those programs might find that they “end up discriminating against women and people of color, and facing that set of liability risks, which I think is much higher than people realize,” he said.

The question of whether Trump’s executive order is legal will ultimately be litigated in court, Berman told Salon, potentially as a result of one of several cases that have already been filed against the order. “It does have to first be implemented, and then have some effect on someone, and then have that someone think that it is in their best interest to challenge it,” Berman said.

A few things in Trump’s executive order “very clearly cross the line,” Berman told Salon, one example being that an executive order cannot be used to eliminate spending programs passed in Congress.

Under the Constitution, presidents are empowered to use executive orders to authorize the government to do anything within the power of the executive branch, but not while infringing on the other branches’ powers. An executive order couldn’t be used to unilaterally overturn a law passed in Congress, experts told Salon, in the same way that a U.S. president couldn’t use executive order to overrule the Supreme Court.

Against the colossal intimidation of a sitting president declaring something illegal and subject to investigation, though, such technicalities may be hard to consider. “When that line gets blurry, it can have a huge impact on people's behavior, even though that behavior isn't doing anything problematic if it was looked at in detail,” Berman told Salon.

One challenge to the order came earlier this month, in a suit filed against the Trump administration by a group of plaintiffs that included the American Association of University Professors, the mayor and City Council of Baltimore and a restaurant trade group formed by New York food workers displaced after 9/11.

Those groups argue that inclusion policies are critical parts of their businesses, and that, to the Trump administration, “DEI is an ideology that they do not define but nonetheless want to crush, whether it manifests itself through lawful speech and actions or through actual violations of law.”

U.S. District Judge Adam Abelson on Friday granted their request for a preliminary injunction and blocked the Trump administration from terminating or changing federal contracts the administration considers equity-related, media outlets reported. Abelson also found the executive orders likely violate free-speech rights.

Trump’s executive orders fulfill months of campaign pledges to end diversity, equity and inclusion initiatives in American workplaces — initiatives that, for many companies, were only adopted in earnest following the 2020 murder of George Floyd. “Black lives matter,” Meta's Mark Zuckerberg wrote on Facebook that year. His company would be one of the earliest to begin disbanding its diversity efforts, scrapping its DEI team and cancelling inclusion-focused programs in 2023 and 2024, alongside a similar move from Boeing, a major federal contractor.

Corporate America largely rejected Trump during his first term. But this time around, it’s easier to list the companies that have refused to heed Trump’s call than name all the businesses that have either changed their diversity initiatives, scrapped their DEI goals altogether or stopped participating in the industry benchmark survey for LGBTQ+ employees.

The abandonment of DEI has been seen across virtually every corner of the corporate sphere. Amazon, Target, Disney, Google, Ford, Molson Coors, McDonald’s, Walmart, Pepsi, Caterpillar, General Motors, Intel, PayPal, Chipotle, Comcast and John Deere are among dozens of corporations and federal contractors to modify or scrap their diversity initiatives. (And there are more still: Lowe’s, Harley-Davidson, Nissan, Stanley Black & Decker, Phillip Morris, Tractor Supply, Toyota and 3M, to name a few.)

On the other side of the coin, executives from Costco, JPMorgan Chase, Apple, Microsoft, Pinterest and Goldman Sachs have all said their companies remain committed to their DEI initiatives. "We flourish from having employees with different views, experiences, and ideas,” Costco, whose shareholders recently rejected an anti-DEI proposal, states on its website.

It’s an interesting thought experiment to imagine companies nixing these policies if they were still largely referred to as diversity initiatives. But the abbreviation “DEI” feels cold in comparison, more clinical — a harsh staccato against softer words like inclusion or fairness. “When you ask people if they approve of DEI programs, you get one answer,” Berman said, citing a study she’d recently read on the subject. “But when you describe DEI programs and ask people if they approve of them, there's a much higher approval rate.”

It’s a rhetorical tactic that conservatives wield frequently: create a boogeyman buzzword that conjures up images of white horror. Before DEI, diversity policies were referred to as “affirmative action” — a phrase first used in 1961, during the Civil Rights movement, in an executive order from President John F. Kennedy that banned discrimination on the basis of race, creed, color or national origin in public workplaces, universities and in the federal government.

Despite largely supporting the Civil Rights Act in Congress when it passed in 1964 — garnering votes from 80% of House Republicans and 82% of Republicans in the U.S. Senate — conservatives largely changed their tune on affirmative action in the 1970s. “You do not correct an ancient injustice by committing a new one,” President Richard Nixon said during his reelection campaign at the Republican National Convention in 1972.

Conservatives justified the pivot using precisely the same logic they’re using today when abandoning their DEI initiatives made just half a decade ago: that affirmative action was discrimination against white people. (The phrase of choice was “reverse discrimination,” a totally unsubtle rhetorical admission that they believe discrimination is naturally occurring when it’s coming from whites, and against people of color.)

“I’m old enough to remember when quotas existed in the U.S. for the purpose of discrimination. And I don’t want to see that happen again,” Ronald Reagan said during his reelection campaign in 1980. Two years earlier, Allan Bakke had sued the University of California after being denied admission to its medical school, and the Supreme Court ruled in Bakke’s favor, ordering the university to admit him and removing certain racial quotas for all future university admissions.

By the ‘90s, the phrase had become a conservative catch-phrase not for workforce or university diversity policies, but for a pandemic of smart, hardworking white people having to give up their hard-earned college admission slots to lazier, less intelligent students because they aren’t white. Of course, no such pandemic was happening; the U.S. Labor Department, amid a national fervor over affirmative action, conducted a workforce study and found that so-called “reverse discrimination” was only occurring a marginal amount of times in affirmative action policies — less than 2%.

“The right of the political spectrum is really good at creating labels that sound really bad, whether that's DEI or CRT or this Marxist agenda that's being implemented,” Berman said, speaking about today’s conservatives rallying against DEI. “But it’s a caricature.”

“They create a caricature of particular ideas and then pretend that's what's going on everywhere,” she said, “and it's super effective.”

It took conservatives a decade to stop supporting affirmative action after the Civil Rights movement, but it only took today’s conservative business titans half the time to kill DEI after 2020. Scores of America’s biggest companies and employers didn’t wait a beat to dismiss their DEI policies the moment it became politically feasible to do so, without putting up anything close to a public fight, and with such swiftness that begs the question of whether those companies were ever earnestly pursuing diversity in the first place.

Pressure from Trump’s Oval Office, and the confusion around how to respond to such an unprecedented order, is no doubt raising the temperature across corporate America’s boardrooms. But you’d also be forgiven for thinking that companies, to say nothing of the (mostly, but surprisingly not all) white conservatives who now oppose DEI, are just doing what they’ve done in the past: abandoning inclusion in favor of self-protection at the first opportunity.