SHRM26 Debrief · Legal & Compliant HR · #3597

Illegal DEI: What the Government Is Coming For — And How to Protect Yourself

with David B. Cohen, M.S.

▶ Watch on the SHRM portal ~59 min, distilled

Illegal DEIExecutive Order 14173Executive Order 14398

"DEI does not exist in Title VII of the Civil Rights Act. The law is the law. The White House can't change the law."

What it was about

The White House-driven crackdown on "illegal DEI" relies on vague executive orders and the False Claims Act rather than clear legal definitions. Employers can protect themselves by auditing their programs against the four historical pillars of unlawful discrimination (quotas, preferences, set-asides, harassment) and documenting a good-faith compliance assessment.

By the numbers

1 to 2,000

Historical annual number of OFCCP audits for federal contractors, for comparison to the new ~7,000 investigations

$17 million

Amount IBM settled for with the Justice Department over alleged DEI/Title VII and Executive Order 11246 violations

25,000

Number of white males OFCCP recompensed for discrimination over the last decade under both Biden and Trump administrations

Key notes

Audit your DEI-related policies, practices, and procedures against the four pillars from Executive Order 11246/Title VII: no quotas, no preferences, no set-asides, and no harassment based on protected status.
If you are a federal contractor, subcontractor, or recipient of federal financial assistance, expect to certify annually (and before new government work) that you are not engaging in illegal or racially discriminatory DEI.
Understand the False Claims Act: whistleblowers who report DEI-related "fraud" can receive 30% of a judgment, and the government can collect treble damages, so treat CID (Civil Investigative Demand) letters as a serious signal.

The contrarian takeThe speaker argues that lawful affirmative-action/DEI frameworks under Executive Order 11246 and Title VII actually enforced meritocracy, the opposite of discrimination. He also argues there's already a form of undisclosed 'affirmative action' benefiting white men in higher education admissions, and theorizes that's why the newest executive order dropped sex-based discrimination from its scope.

Take this back Monday

Do this for your team

Check if your firm crosses the new $15K federal-contract threshold, then have counsel audit DEI policies for quotas, preferences, or set-asides.

Say this in your next leadership meeting

There's no legal definition of 'illegal DEI' yet, so our best defense is a privileged, documented audit against Title VII's actual quota/preference/set-aside standards.

Watch out for

Assuming DEI programs are automatically unlawful without checking them against actual Title VII/Executive Order 11246 standards (quotas, preferences, set-asides, harassment).
Doing nothing to assess DEI-related risk before signing a federal contract: this can be construed as "deliberate ignorance" under the False Claims Act.
Simply relabeling DEI programs rather than substantively changing them. The government has signaled it is looking past labels to actual practices.

If this landed, see these

↳ Go deeperInclusion Under Pressure: Stress-Testing Diversity Strategies for Legal Resilience and Business ImpactA five-prong framework pressure-tests DEI programs against six legal-defensibility standards.⇄ The counterpointNavigating the Wild Habitat of Workforce RegulationsDEI enforcement is one wave in a much larger 2026 compliance storm.✦ The unexpected oneTalent Intelligence on a Shoestring: Turning HR Data into Board InsightsThe same HR data that tells a board story can document good-faith compliance.