With DEI in the crosshairs of the current administration’s enforcement activities, employers need to review their organization for DEI type policies, practices and activities (even if the organization does not subscribe specifically to DEI).  The guiding principle of this audit is to prevent violations of Title VI of the 1964 Civil Rights Act that govern programs and activities receiving federal financial assistance, Title VII of the 1964 Civil Rights Act which governs the employment relationship of employers with 15 or more employees, and Title I which governs schools.  The review should also clarify whether meritocracy is applied consistently across all stages and levels of employment, including related processes and practices.

1. Policy and Practice reviews

The policy audit will review multiple areas of risk.  First, it will review if the policies are consistent with current law requirements, both state and federal.  Second, it will review whether preferences are identified in the policies, practices, and requirements.  These include but are not limited to:

• EEO Policies
  • EEO policy
  • Pregnant Workforce Fairness Act
  • Veteran and Disabled policies (if any)
  • Employee Resource Group (Affinity Group) policies
  • Environmental, social and governance (ESG) policies
• Employment Policies
  • Recruitment and hiring policies
  • Promotion policies
  • Termination policies
  • Pay policies
  • Testing policies and practices
• Other Policies
  • Accommodation policies and practices
  • Time off policies and practices
  • Flexible work policies and practices
  • Taglines on job postings
  • Website review (esp. if diversity is a driver of the website)
  • Supplier diversity policies and practices
  • Client contracts and expectations
• Community Relations
• Web related policies and practices
  • Advertisements
  • Websites-intranet and internet, especially saved but not active (or deleted) pages
  • European v. U.S. requirements especially gender targets.

2. Analyses of Employment Activity

The employment activity audit will review policies and practices to ensure a level playing field is found and will confirm appropriate FLSA classification of employees.  Using a job group approach of combining jobs with similar job content, wages, and opportunities will allow for an FLSA analysis, and the audit will review actual hiring, promotion, and termination activity using an adverse impact analysis approach based on race and gender. This approach compares the most favored race (whatever that may be) and gender against all others. If an indicator arises, a deep dive review should be undertaken to determine if it is a positive or false indicator looking at title and/or requisition and hiring manager. 

• Hires will be compared to applicant flow
• Hiring slates will be randomly reviewed to ensure it is on the meritocracy field
• Promotions will be compared to others from same job group or title
• Terminations will review overall, voluntary, involuntary and manager/supervisor conducting the termination (to see if there are any out of ordinary trends)
  • Termination trends will be identified if any
  • Consistency of discipline and termination will be reviewed
• Compensation review to ensure that no group is favored in pay practices
• Recruitment sourcing and expectations will be reviewed
• Apprenticeship sourcing and hiring (if applicable) will be reviewed
• Workforce balancing, goals, will be reviewed (if applicable)
• EEOC charges will be reviewed for trend analysis

3. Analyses of Training

This part of the DEI audit will examine both diversity and compliance training to ensure that the content and delivery are free from bias and discrimination. This aspect will review training that is varied.

• Diversity focus
• Compliance focus
• Leadership development
• Employee development

4. Interviews with various stakeholders

This part of the DEI audit will involve selected interviews with various stakeholders from senior leadership to employees to understand how diversity and compliance have been received within the organization both in practice and understanding.  Although policies and procedures state one thing, practice can be entirely different.

• Senior or Executive level
• Hiring managers
• Promotion hiring managers
• Termination managers
• Various employees from HR to field

This audit is not for the faint-hearted. It can be both time-consuming and costly. Given the current administration's priorities and the potential for negative repercussions, employers may want to monitor how anti-DEI compliance is being enforced before proceeding. The situation is further complicated by conflicting DEI requirements at the state and local levels, particularly in blue states. Most importantly, if you choose to move forward with the audit, be sure to involve legal counsel to oversee the process and ensure that all activities and findings remain protected under attorney-client privilege.