Employers Should Audit I&D Messaging on Careers Pages

Experts recommend that employers re-examine how they treat inclusion and diversity (I&D) on their careers pages and recruitment materials in the wake of executive orders (EOs) issued by President Donald Trump in January. While portions of the EOs on diversity, equity, and inclusion (DEI) have been blocked by a federal judge, the Trump administration has appealed the temporary injunction. 

Employers in recent years have routinely promoted their I&D initiatives and programs on the careers page of their company website, typically highlighting their commitment to creating a diverse workforce, showcasing inclusive hiring practices, and featuring stories of employees from diverse backgrounds. The aim of promoting I&D is to attract job candidates from as wide a pool as possible and to improve employer branding. 

But some language or messaging could now be seen as problematic in light of the Trump administration’s focus on what it calls “illegal DEI.” 

“It’s difficult because there is a distinction between what is illegal and what is potentially legally risky,” said Jonathan Segal, a partner with Duane Morris in Philadelphia. “It is not illegal for an employer to promote its inclusion and diversity efforts. But some may see those efforts as discriminatory. If you scrub any mention of I&D from your careers page, that could turn off some applicants — but others might say they feel excluded from what is considered diverse.”  

Segal does not recommend eliminating the I&D section of a careers page. “It is OK for an employer to say that they are interested in attracting a diverse pool of qualified talent and that hiring decisions are made in accordance with a nondiscrimination policy,” he said. “Make clear that there is a commitment to both inclusion and nondiscrimination and that you will not consider race or sex in making hiring decisions.” 

An employer’s decision in this area will ultimately depend on the organization’s appetite for risk, said Amy Epstein Gluck, partner and employment counsel in the Washington, D.C., office of Pierson Ferdinand. “Under the executive order, ‘illegal DEI’ practices are being targeted, but it’s not known what that means,” she said. “Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin. That is nothing new. It has never been legal to hire using preferences or quotas, like saying you are only going to hire women, or people under 30, or only Black people.”  

Employers should examine the language being used, Epstein Gluck recommended. “Are you saying you will hire the best people from a large pool of applicants from different backgrounds? That is perfectly fine,” she said.  

Potential Targets

Risky messaging would be anything that seems to show that hiring is based on preferences for one group over another, Epstein Gluck added. “That would be an obvious target.” 

Statements that could be problematic include “Diverse candidates are encouraged to apply” and “Diversity is a plus,” because it’s not clear what “diverse” or “diversity” means in that context, and people could feel they are not included, Segal said. 

“I wouldn’t recommend saying, ‘We seek to have a workforce that represents the community we serve,’ ” he said. “Someone may say that feels like a hiring quota. Also, ‘DEI is part of our DNA.’ What does that mean? That may raise expectations for some and lower expectations for others. I would not include that. “The words you use are going to matter,” Segal continued. “Sometimes what is said and what is heard are very different things.”  

Getting Other Messaging Right

Experts recommend keeping the standard equal employment opportunity statement. “Removing it could send the wrong message,” Segal said. “There’s no question that equality of opportunity is essential. If it’s removed, that may be read as, ‘We discriminate.’ ” 

When a company wants to include references to employee resource or affinity groups, “it is absolutely critical to explicitly state that the group is open to all employees,” he added. “I&D practices need to be clearly seen as inclusive, or people may assume they are exclusive.”  

Pictures and videos on careers pages should reflect the diversity of the workforce and not appear to show preference for certain groups of people over others.  

Getting careers page messaging right is important because the trend of  “reverse discrimination” claims is rising, and plaintiffs’ lawyers are looking at employers’ careers pages, Segal said.  

Also, employers should conduct an audit of their I&D programs, practices, and policies — including careers page messaging — with counsel to ensure the attorney-client privilege protection of confidential communications, Epstein Gluck recommended.