DEI (diversity, equity and inclusion) is the set of policies and practices an organization uses to build a workforce with a range of backgrounds and perspectives (diversity), fair processes and access to opportunity (equity), and a workplace where people can participate and be heard (inclusion). In recruiting, it shapes how you source, screen, interview and pay people. In the United States, federal guidance and executive orders since 2025 have put the design of DEI programs under closer legal scrutiny, so check the current rules in each country where you hire before you launch or change a program.
The three parts of DEI
- Diversity: the variety of ways people differ, such as race, gender, age, disability, nationality, education and work experience.
- Equity: fairness. In hiring, the safest practical reading is a consistent, job-related process applied to every candidate.
- Inclusion: whether people feel welcome, are heard and can take part fully.
What DEI looks like in recruiting
- Broad sourcing: posting roles in more channels and searching beyond the usual schools, employers and referral networks, so that the candidate pool is wider.
- Structured interviews: the same questions for every candidate, scored against written, job-related criteria.
- Clear job requirements and pay ranges: the EU Pay Transparency Directive requires employers to give applicants the pay or pay range before the job interview or before a contract is concluded. Its transposition deadline was 7 June 2026, and national implementation was uneven when Littler reviewed it in May 2026, so check the law in each country where you hire.
- Accessible process: interview accommodations, and mentoring or employee resource groups that any interested employee can join.
The US legal position (as of September 2026)
Title VII of the Civil Rights Act applies to employers with at least 15 employees. The EEOC says a DEI initiative or practice may be unlawful if it involves an employment action motivated, in whole or in part, by race, sex or another protected characteristic. Its guidance lists limiting employee resource group membership to certain groups, and placing or excluding candidates from an interview slate or pool, as examples of covered conduct.
Several other developments matter for recruiters:
- On 5 June 2025 the Supreme Court held in Ames v. Ohio Department of Youth Services that majority-group plaintiffs do not face a heightened evidentiary standard under Title VII. Every candidate, whatever their group, can bring the same claim.
- On 21 January 2025, Executive Order 14173 rescinded Executive Order 11246 in its entirety, which had required federal contractors to take affirmative action.
- On 26 February 2026 EEOC Chair Andrea Lucas sent employers a letter stating that the same rules apply to programs carrying other labels, such as "Inclusion & Diversity" or "Belonging", and noting that the Commission, which regained a quorum in October 2025, can bring systemic and pattern or practice cases.
- On 26 March 2026 an executive order defined "racially discriminatory DEI activities" as disparate treatment based on race or ethnicity in recruitment, employment, contracting, program participation or resource allocation. It requires a contract clause in which contractors promise not to engage in them and acknowledge that compliance is material under the False Claims Act. Agencies were to add the clause by 25 April 2026.
These sources target practices that treat people differently because of a protected characteristic. They do not say every diversity-related practice is unlawful, and the same Dechert review notes that courts are still working out where the lines fall. Consult employment counsel before launching or changing a program.
Common mistakes
- Restricting access by group: limiting employee resource group membership, or placing or excluding candidates from an interview slate or pool, on the basis of race, sex or another protected characteristic are both listed by the EEOC as examples of potentially unlawful conduct. Programs open to all applicants are the lower-risk design.
- Assuming a new name fixes it: the EEOC letter says renaming a program does not change its legal status.
- Treating training as the whole program: the EEOC says DEI-related training can, in some circumstances, support a hostile work environment claim. Review the hiring process itself, not only the training.
- Measuring nothing: without pass-through rates by stage, you cannot tell whether a step screens out qualified people for reasons unrelated to the job.
Frequently asked questions
Is DEI illegal in the US?
Not as a label. The federal sources cited above focus on employment decisions and program access that depend on race, sex or another protected characteristic. Widening the pool and judging everyone on job-related criteria is different from preferences or restricted programs, but the boundaries are still being tested, so get legal advice.
What is the difference between equity and equality?
Equality means giving everyone the same treatment. Equity means making sure the process is fair in practice, for example by offering interview accommodations so a disability does not distort the assessment. In US hiring, the safer version is a consistent process for every candidate.
How is DEI different from affirmative action?
Affirmative action, for federal contractors, was a legal requirement under Executive Order 11246 to take steps so applicants and employees were treated without regard to protected characteristics. As noted above, that order was rescinded in January 2025. DEI is broader and voluntary for most employers, and it is now shaped by anti-discrimination law and, for federal contractors, by the January 2025 and March 2026 executive orders.
