Emily Schultz
Horizon Employment Law, San Francisco, California
emily@horizonemploymentlaw.com

Introduction

The landscape of diversity, equity and inclusion (DEI) initiatives in the United States and globally is undergoing a significant shift, with potential ramifications for internal and external workplace investigations. Recent US presidential directives, including executive orders (EO 14151^[1] and EO 14173^[2]), and legal challenges to DEI programmes in the US have caused some companies, such as Paramount, Walmart, Lowe’s, PepsiCo, McDonalds and John Deere, to remove or scale back their DEI programmes or policies.^[3] In the United Kingdom, GSK (GlaxoSmithKline) halted its diversity initiatives for British employees as a result of President Trump’s Executive Orders.^[4]

In contrast, other companies, such as Apple, are keeping their DEI programmes and policies despite the political and legal risks. Apple CEO Tim Cook stated, ‘as the legal landscape around this issue evolves, we may need to make some changes to comply, but our north star of dignity and respect for everyone and our work to that end will never waver’.^[5]

Workplace investigations delve into whether an employee violated a company policy or standard. As a result, workplace investigations will almost certainly be impacted by these sudden and drastic changes to some companies’ DEI-related policies and programmes. Investigations may find fewer violations of company policies and standards for the same conduct that previously would have been considered problematic. This could have a negative impact on employees’ feeling of workplace safety and comfort.

This article examines how these changes are shaping workplace investigations, Equal Employment Opportunity Commission (EEOC) investigation updates and recent changes along with key legal considerations for ensuring fairness, due process and compliance in this evolving environment.

The impact of DEI’s decline on workplace investigations

How shifting corporate DEI priorities affect investigation protocols

The decline of corporate DEI initiatives is prompting many organisations in the US and abroad to reevaluate their workplace investigation protocols and policies. Companies once dedicated to proactive DEI efforts supported by an effective and independent internal investigations programme may now:

• Reduce bias training for investigators: With DEI budgets shrinking and concern about federal government scrutiny, training related to workplace investigations of bias or discrimination claims could be deprioritised. This may involve modifying, scaling back or discontinuing DEI-focused investigation training that could be perceived as illegal under recent executive orders in the US.
• Alter complaint review processes: A shift away from DEI may lead to changes in how employers respond to complaints from employees in underrepresented groups. Whereas in the past, employers may have had a robust investigation programme that looked into every employee complaint, now employers may decide not to investigate employee complaints they fear are too closely aligned with DEI goals. Similarly, employees may choose not to come forward with complaints because they worry such concerns will no longer be thoroughly investigated.
• Reassess investigations involving diversity-focused hiring and promotion: Companies may face internal debates over whether investigations into hiring and promotions should continue to emphasise DEI metrics. In the US, EO 14173^[6] intends to restore merit-based opportunity in hiring and promotions, which many have viewed as the end of affirmative action. This could potentially impact employees who are prevented from, or are hesitant to, submit internal complaints of unfair hiring at companies. Those same companies may also be reluctant to investigate and enforce policies that the government now considers illegal.

Anticipated rise of reverse discrimination claims

As some employers scale back their DEI programmes, there is an expected rise in employee complaints, and corresponding internal investigations, alleging reverse discrimination. The reverse discrimination concept became more prevalent after the civil rights and women’s rights movements in the US in the 1960s and 1970s and refers to members of a majority group – such as men, heterosexuals or Caucasians – that perceive discrimination based on their protected class.

In the context of workplace investigations, as a result of this new anti-DEI landscape, employees who feel that they experienced reverse discrimination may now be more inclined to submit internal complaints than they previously were. This may compel employers to conduct workplace investigations on whether their own DEI-related policies and initiatives promoted an environment where coworkers or managers tolerated and engaged in reverse discrimination. This could cause employers to feel trapped between demands to increase opportunities and programmes for employees in underrepresented groups, and reverse discrimination complaints by employees in majority groups. Employers must be prepared to address such claims and ensure that their investigation processes are fair and objective, considering all relevant evidence and perspectives.

Legal implications: 2024 EEOC investigation updates and 2025 changes

There are a number of legal implications for US employers in light of the current shift away from DEI. Employers that were previously under close scrutiny by the EEOC for violations of labour laws may now find that EEOC investigations are less common and enforcement of EEOC laws is lax.

The EEOC is a US federal agency responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, colour, religion, sex (including pregnancy, childbirth or related conditions, transgender status and sexual orientation), national origin, age (40 or older), disability or genetic information. The EEOC has the authority to investigate charges of discrimination against employers who are covered by EEOC laws.

In April 2024, after more than 25 years, the EEOC updated its Enforcement Guidance on Harassment in the Workplace.^[7] The updated guidance expanded the definition of sex-based harassment, addressed modern work environments (ie, virtual or hybrid work settings) and emphasised the necessity for employers to conduct ‘prompt’ and ‘adequate’ workplace investigations into harassment claims.

In January 2025, many of these updates were scaled back or struck down by the new EEOC Chair based on EO 14168.^[8] The executive order directed federal agencies to enforce laws governing sex-based rights, protections, opportunities and accommodations to protect men and women as biologically distinct sexes, and to remove all statements, policies, regulations, forms, communications or other internal and external messages promoting gender ideology.

As a result of these recent changes, employers are now in a difficult situation of having to meet EEOC standards and guidance related to conducting their workplace investigations while also not violating the EEOC’s new position based on presidential orders. Given its new anti-DEI mandate, the EEOC is expected to give heightened attention to cases alleging that past DEI programmes unfairly disadvantaged certain employees. Employers should be prepared for EEOC audits or investigations into whether DEI initiatives, policies and programmes align with federal non-discrimination laws. To minimise risk, employers can review and revise policies and programmes and focus on inclusion and fairness, rather than quotas or systems that favour specific employee groups.

Conclusion

The evolving DEI landscape presents both challenges and opportunities for employers and is reshaping workplace investigations. By staying informed about legal developments and EEOC guidelines, implementing neutral, standardised investigation protocols and prioritising fairness and objectivity, organisations can navigate this shifting terrain while ensuring compliance and fostering a respectful and inclusive workplace.