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Abstract

Today’s headlines around diversity, equity, and inclusion (“DEI”) in the workplace are politically charged, raising questions for Virginia’s employers committed to fairness and equal opportunity. As renewed scrutiny is fueled by executive orders and media discourse, this essay clarifies the evolving legal landscape and provides a foundation for employers navigating DEI in compliance with both federal and Virginia law. DEI is a phrase that today stirs fervor from both sides of the political aisle. Opponents criticize DEI as a proxy for “reverse” discrimination, suggesting that it lowers merit-based standards and violates existing anti-discrimination law. Proponents advocate DEI as the approach to management that eliminates the systemic barriers (such as affinity bias) that can lead to racial discomfort and social alienation and, instead, enables merit-based decision making in the workplace in compliance with existing anti-discrimination law. The dictionary defines “diversity” as “the condition of having or being composed of differing elements”; “inclusion” is “the act of including,” which is “to take in or comprise as a part of a whole or group”; and “equity” is “fairness or justice in the way people are treated.” These basic definitions do not suggest or support the idea that DEI is the same thing as a quota, set-aside, or preference for one group of people. To equate DEI with such concepts, one would have to read the opposite into these definitions to talk about a lack of diversity, inclusion, and fairness. …

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