Are Ohio employers next when it comes to DEI prohibitions?

Yahoo

06-05-2025

Hundreds of students protested against Senate Bill 1 on Ohio State's campus on March 4, 2025. (Photo by Megan Henry, Ohio Capital Journal).
A series of executive orders by President Donald Trump targeting diversity, equity, and inclusion (DEI) initiatives have many companies and organizations scurrying to determine if they need to change or even scrap their diversity and inclusion policies. Those in Ohio may even be more worried and confused, due to a new state law that prohibits DEI in public higher education.
This confusion is likely exacerbated by the fact that, as any labor and employment lawyer will attest, there is no standard definition of DEI in the human resources universe – leaving much to interpretation. What is certain is that sweeping changes to DEI are underway, and Ohio's private companies need to quickly come up to speed on what may be required of them soon.
A good place to start is a review of a series of presidential orders in January. Although these orders target primarily federal agencies and their contractors, federal agencies are directed to submit reports identifying private sector companies with the most 'egregious and discriminatory' DEI programs. As a result, several high-profile companies – including Meta, Target, Walmart, Google and PepsiCo – either reduced or eliminated their DEI programs.
Then, in late March, Ohio Governor Mike DeWine signed legislation banning DEI programs at the state's public colleges and universities. Before the bill even passed the Ohio legislature, the state's largest school – Ohio State University – closed two campus offices focused on DEI and eliminated more than a dozen staff positions. Other schools, including the University of Cincinnati and Miami University, followed suit once the ink was dry on the legislation.
While the new state law doesn't target Ohio's private employers, it has left some wondering if they, too, will be required to scale back or end their DEI initiatives. This confusion isn't helped by the fact that the U.S. Equal Employment Opportunity Commission (EEOC) – whose job it is to investigate complaints of discrimination and sue employers who violate federal employment discrimination laws – is itself in disarray after the commission's two Democrats were fired in January.
Yet, there are some recent 'technical assistance documents' from the EEOC that, while not as impactful as commission regulations and guidelines, provide insights to employers on how they should consider various DEI questions. In a newly released document titled 'What You Should Know About DEI-Related Discrimination at Work,' the agency poses a series of questions and responses that may be helpful to companies.
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Some of the questions and answers are well-known to many corporate HR specialists and employment lawyers, such as whether an individual can file a federal discrimination lawsuit related to DEI at their work without taking any other steps. The answer is no, because an individual must first file a charge of discrimination with the EEOC, which then must complete an administrative process before the person can file a federal lawsuit.
Another question asks whether protections under federal Title VII 'only apply to individuals who are part of a minority group.' Again, the answer is no, because these protections apply equally to all workers, the EEOC states, and 'different treatment based on race, sex, or another protected characteristic can be unlawful discrimination, no matter which employees or applicants are harmed.'
Other questions have sound answers, but may not be reflective of actual practice in some workplaces. For example, in response to the question, 'When is a DEI initiative, policy, program, or practice unlawful under Title VII,' the EEOC provides several examples of such unlawful conduct, including separating workers into groups based on race, sex or another protected class for administering DEI or other training.
The agency notes that employers should provide 'training and mentoring that provides workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascend to upper-level jobs.'
In truth, however, I'm fairly certain this practice has taken place at some companies – and recently.
A different question asks whether a client preference or request for diversity is a defense against intentional race discrimination. The answer is no, with the EEOC stating a 'client or customer preference is not a defense to race or color discrimination' and 'basing employment decisions on the racial preferences of clients, customers, or coworkers constitutes intentional race discrimination.'
The EEOC goes on to say that 'employment decisions based on the discriminatory preferences of clients, customers, or coworkers are just as unlawful as decisions based on an employer's own discriminatory preferences.'
That certainly sounds like the correct legal answer. However, in everyday business, it is not unusual for some clients/customers to require their vendors to provide race information of their employees, with the insinuation of stacking accounts with minority employees.
Even more confused? All the more reason Ohio companies should, against this backdrop of anti-DEI measures, immediately begin reviewing their DEI initiatives and programs, as well as information about those programs posted on their websites, in public filings and social media.
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