How-to guide: How to deliver workplace diversity training (USA)

Introduction

This guide will assist in-house counsel, private practice lawyers, and human resource departments to provide effective diversity training. It provides practical guidance about diversity training as well as an overview of the current legal landscape.

This guide covers:

Overview of diversity training
Providing effective diversity training

For more information on the broader context of such training, see How-to guide: Overview of US employment law. For information about discrimination law in the USA, see Checklist: Developing an Equal Employment Opportunity Commission (EEOC) compliant policy and Checklist: Responding to an Equal Employment Opportunity Commission (EEOC) charge.

Step 1 – Overview of diversity training

In recent years, growing awareness of various types of workplace discrimination has prompted increased interest in creating and maintaining inclusive workplaces. Legal requirements regarding diversity training in the US are not uniform, varying by state, municipality, and type of employer. Ensuring compliance requires a thorough understanding of these differences. However, the benefits of diversity training extend beyond legal obligations. It is a powerful method for addressing workplace biases, reducing discrimination, and cultivating a more inclusive and equitable environment, while also maintaining alignment with current best practices. It may also be a remedial measure, adopted to address or mitigate past discrimination issues.

1.1 Definition, types and purposes

1.1.1 Definition of diversity training

Diversity training is training that aims to strengthen awareness of diversity, equality, and discrimination issues in workplace settings. It gives employees the knowledge and skills to help them work more collaboratively and productively with people from diverse groups, including in terms of race, ethnicity, religion, cultural background, gender and gender identity, sexual orientation, or physical and cognitive ability. It is also commonly referred to as diversity, equity, and inclusion (DEI) training.

1.1.2 Types of diversity training

There are a number of different types of diversity training some of which are listed below.

Basic diversity training focuses on clarifying what kind of behavior may violate internal policies or applicable laws relating to discrimination and harassment.
DEI training focuses on different aspects of diversity and inclusion. For example, some forms of training focus on highlighting and overcoming barriers that can prevent people from underrepresented groups fully participating in the workplace, such as by ensuring more equal representation in workplace activities, processes, and decision-making. By contrast, training that focuses on unconscious bias helps employees recognize and counter their own biases, which can be affecting their actions in ways that they are not actively aware of.
Training about microagressions aims to help employees to identify actions that may amount to microaggressive behavior. This is behavior that communicates, whether intentionally or not, a person’s bias (e.g., complimenting a person of Latino heritage on how well they speak English, or asking an employee of Asian descent where they ‘really’ come from). Microaggression training sensitizes employees to the corrosive effects of such behavior while also presenting techniques for responding to it.

1.1.3 Purpose of diversity training

Organizations offer diversity training for a wide variety of reasons. For example, see the Harvard Business Review, ‘Why Diversity Programs Fail’.

Some organizations provide training largely to protect themselves from falling afoul of anti-discrimination laws. Some will introduce such training after facing litigation alleging discrimination. Offering quality diversity training can be a mitigating factor when punitive damages are determined in legal proceedings relating to discrimination, including harassment. Other organizations offer diversity training because they realize that many employees and customers today expect businesses to support diversity and inclusion, and providing such training is a tangible way of doing so.

Some organizations seek broader benefits, such as empowering people from a wider range of groups in the workplace and strengthening collaboration among all employees (see Business News Daily, ‘Creating a Diversity, Equity and Inclusion Training Program’). When done well, diversity training brings advantages that go beyond avoiding lawsuits or bad publicity. It can increase employee engagement, improve teamwork, reduce staff turnover, and allow companies to fully harness the benefits of a diverse workforce.

1.2 Legal landscape

While there is strong support for DEI efforts across the US, measures to promote inclusion have also triggered considerable controversy and a strong backlash. Diversity training in particular has become a politicized and polarizing issue. As a result, the topic has both featured in legal tugs of war and has sparked very different legislative approaches across states. Navigating these laws is not an easy matter.

1.2.1 Federal level

In 2020, President Trump issued an Executive Order on Combating Race and Sex Stereotyping. It stated that federal agencies, contractors, and grant recipients, as well as the military, should ‘foster environments devoid of hostility grounded in race, sex, and other federally protected characteristics’ and that training employees to create an inclusive workplace is appropriate and beneficial. However, it criticized some forms of such training as ‘blame-focused’ training that perpetuates racial stereotypes and division. Specifically, it deemed ‘divisive’ certain concepts, such as that the United States is fundamentally racist; that an individual, by virtue of his or her race, is inherently racist or oppressive, whether consciously or unconsciously; and that any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.

The Executive Order therefore prohibited such training and directed the Department of Labor to establish a hotline for concerned parties to report diversity training for possible investigation. As a result of these measures, many entities temporarily suspended all diversity and inclusion training pending reviews of its content.

In January 2021, during the final days of Trump's first administration, it published the 1776 Report, which framed a national curriculum and promoted a specific view of American history, which has since been cited as a basis for dismantling what the administration considers to be "divisive" or "radical" educational initiatives, including those related to race and gender.

President Biden revoked the Executive Order on Executive Order on Combating Race and Sex Stereotyping and issued an Executive Order on Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce. Among other matters, it ordered federal agencies to implement or increase the availability and use of diversity, equity, inclusion, and accessibility training programs, on the basis that such training programs would:

help federal employees, managers, and leaders gain knowledge of systemic and institutional racism and bias against underserved communities;
build skillsets to promote respectful and inclusive workplaces;
eliminate workplace harassment; and
improve understanding of implicit and unconscious bias.

In 2023, the EEOC released proposed guidance, ‘Enforcement Guidance on Harassment in the Workplace,’ which provided the agency’s stance on effective anti-harassment policies, effective anti-harassment training, and common pitfalls in implementing anti-harassment initiatives.

Since returning to office, President Trump has put in place several executive orders and measures aimed at dismantling or weakening DEI initiatives within the federal government and targeting DEI programs in the private sector. Key actions include:

Executive Order 14173: titled ’Ending Illegal Discrimination and Restoring Merit-Based Opportunity’, this order rescinds affirmative action and non-discrimination requirements under Executive Order 11246. It mandates that federal contractors and grantees certify they do not operate ’illegal’ DEI programs and instructs the US Attorney General to develop a strategic enforcement plan targeting DEI programs believed to violate federal antidiscrimination laws.
Executive Order 14168: under ’Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,’ this order defines ’sex’ strictly as biological male or female, seeks to remove ’gender identity’ protections, and aims to overturn the Supreme Court decision in Bostock v. Clayton County, 590 US 644 (2020), the decision in which the Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of sexuality or gender identity.
Executive Order 14151: this order, ’Ending Radical and Wasteful Government DEI Programs and Preferencing,’ aims to eliminate DEI programs across the federal government, including removing DEI-related personnel and offices. It also prohibits the use of preferred pronouns in government communications and ends certain demographic celebrations, such as Black History Month.
Department of Justice Memorandum: US Attorney General Pam Bondi issued a memo requiring the DOJ to submit recommendations for ending ’illegal’ DEI programs in the private sector. This includes initiating criminal investigations into corporate DEI practices.
The Office of Personnel Management (OPM) Memorandum: In response to Executive Order 14151, the OPM issued a memorandum to federal agencies that gave guidance on how to carry out the President’s order, including the elimination of DEI offices and positions.
Office of Federal Contract Compliance Programs (OFCCP): the administration ordered the OFCCP to halt enforcement of EO 11246 and pause related litigation and audits, affecting affirmative action for individuals with disabilities and veterans.
EEOC Leadership Changes: President Trump replaced two Democratic EEOC Commissioners with Republican Andrea Lucas as Acting Chair. Ms. Lucas emphasized the enforcement of the President’s orders, and is focused on eliminating unlawful DEI practices while addressing religious bias and other areas thought to be under-enforced.

These actions reflect the administration's intent to significantly reduce DEI initiatives both in the public and the private sector.

Some of President Trump’s actions are specific to the federal government,but several impact the private sector, including those companies that have implemented DEI policies voluntarily. For instance, Executive Order 14173 affects all private companies and includes additional requirements applicable to federal contractors and grantees.

Executive Order 14173 revokes Executive Order 11246, meaning federal contractors no longer need to create affirmative action plans for women and minorities. It mandates that all federal contracts and grants include:

A requirement for contractors and grantees to certify they do not operate programs promoting DEI that violate federal anti-discrimination laws.
A stipulation that compliance with all federal anti-discrimination laws is crucial for government payment decisions under the False Claims Act (FCA).

Executive Order 14173 also directs the US Attorney General to develop a strategic enforcement plan targeting illegal discrimination and DEI preferences. This includes identifying key sectors of concern and the most discriminatory DEI practitioners, and outlining steps to deter unlawful DEI practices. It also calls for strategies to encourage the private sector to end illegal DEI discrimination and comply with all federal civil rights laws. Each federal agency has been directed to identify up to nine potential civil compliance investigations involving large corporations, nonprofits, foundations, professional associations, and educational institutions with significant assets.

1.2.2 State level

There is great variety in the way that different states approach diversity training, so it is vital to check which rules apply in the relevant jurisdictions.

Diversity training is generally not legally required. However, some states do impose training requirements for state employees or contractors, and in several states, certain forms of diversity training are mandatory in select industries.

For example, in New York, Senate Bill 538 was signed into law in December 2021. It requires real estate brokers and salespersons to receive implicit bias training as part of their license-renewal process. Other examples of industries and professions in various jurisdictions that require bias training for licensees include health care, legal, and law enforcement.

By contrast, some states have moved to curtail diversity training. These moves prohibit employers, or certain categories of employers, from requiring employees to participate in DEI training, or by restricting the content that may be presented in mandatory training sessions.

Florida

In Florida, Governor DeSantis signed into law House Bill 7 – initially referred to as the ‘Stop WOKE Act’ and later as the ‘Individual Freedom Act’ – in April 2022. The law imposes restrictions on the content of mandatory diversity training provided by employers – public or private – with 15 or more employees. Specifically, it requires certain concepts to be presented by the employer in an objective manner, i.e., without endorsement. Violations of this law constitute unlawful employment practices, meaning that employees may bring administrative complaints under the law.

The concepts covered by the law are similar to those targeted in former President Trump’s Executive Order. Among others, they include the concepts that an individual, by virtue or on account of his or her race, color, sex, or national origin:

is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin; or
should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race, color, sex, or national origin.

Espousing that ‘virtues’ such as ‘racial colorblindness’ are racist is also prohibited.

In August 2022, a federal court in Florida issued a preliminary injunction blocking the law based on First Amendment considerations (see Honeyfund.com, Inc v DeSantis, 622 F.Supp. 3d 1159 (2022)). This decision was subsequently affirmed on appeal by the Eleventh Circuit (see Honeyfund.com Inc. v. Florida, 94 F.4th 1272 (11th Cir. 2024)).

Other state legislation

Meanwhile, legislation with aims similar to those of the Florida law is appearing in other states. For example, in February 2023, such a bill was introduced in Montana. Unlike Florida’s law, it applies only to state employers and contractors.

Organizations should be aware that other types of laws can also be relevant. For example, in Connecticut, a more broadly worded law presents a potential stumbling block for employer-sponsored diversity and inclusion efforts, including training. Section 31-51q of the Connecticut General Statutes forbids employers from terminating or disciplining employees for refusing to attend employer-held meetings where ‘the primary purpose . . . is to communicate the employer’s opinion concerning religious or political matters.’ The term ‘political matters’ is defined broadly to include meetings regarding ‘the decision to support any political party or political, civic, community, fraternal, or labor organization.’ Although the law is primarily aimed at meetings discouraging union elections, the reference to ‘civic’ and ‘community’ organizations has prompted some concern that employees could rely on the law’s broad language to refuse to participate in diversity and inclusion efforts, including DEI training (see CBIA, ‘Will Connecticut’s Captive Audience Law Survive Legal Challenge?’).

Step 2 – Providing effective diversity training

Even when not politicized, diversity training will succeed only when done thoughtfully. Being aware of local laws is crucial for organizations that offer such training. While it is impossible to set out a one-size-fits-all approach to diversity training, keeping in mind several fundamental principles can help organizations avoid common errors.

2.1. Diversity training essentials

Diversity training will not be effective or credible if offered in a vacuum. Organizations should be sure to combine training sessions with broader, long-lived structures that promote an inclusive working environment (see Harvard Business Review, ‘Why Diversity Programs Fail’). These can include mentorship and networking opportunities, task forces, and targeted recruitment.

It is also vital to allocate sufficient budget to diversity training. Besides ensuring higher-quality offerings, this sends an important signal to employees. This signal will be further strengthened if those responsible for organizing the training (often members of the human resources or legal teams) are able to convey to the leadership of the organization the importance of participating in the training.

One element that must be considered carefully is whether to make diversity training mandatory or voluntary. The former shows that the organization is serious about supporting its goals, but mandatory training can trigger both resistance and even backlash. Providing incentives, such as small gifts or additional time off, may be key to fostering participation while avoiding defensiveness from those who do not choose to participate in voluntary training.

At the very minimum, the goals of diversity training are to clarify what kind of conduct violates relevant policies, such as anti-harassment policies, and to convey the seriousness of violating them. But the broader goal should be a stronger capability to both identify and reduce bias.

2.2. Content and format

The content and format of diversity training will depend heavily on the specific context, and will need to be tailored to the organization. For example, whether there have been incidents or complaints will be a relevant factor, and this type of training will be different from training that is being offered proactively by the organization.

Organizations may consider setting up a diversity task force comprising employees from different departments and consulting it regarding the content and format of the diversity training. However, given the sensitive and complex nature of the content of diversity training, it is generally recommended to hire outside experts to provide it.

While content will vary, be sure to avoid the common pitfall of gearing the content only toward majority groups. Including personalized storytelling has shown to be effective, as this makes more tangible and relatable concepts that can initially seem theoretical and are often misunderstood.

In terms of format, the organizations should consider the following:

organizing training for smaller groups is conducive to deeper discussion; and
a series of workshops is generally more effective than one-off training sessions, especially because some points covered in diversity training can take time to truly sink in. This may mean offering follow-up training on specific topics to reinforce the key messages.

The Harvard Business Review: 5 Strategies to Infuse D&I into Your Organization offers a new approach to incorporating DEI training into the culture of the business. The five strategies include:

Ensuring that the CEO positions themselves as the top champion for diversity and inclusion efforts;
Centering diversity and inclusion in the organization’s business strategy;
Hold executive leaders accountable for driving diversity and inclusion outcomes; and
Mitigating implicit bias at the systemic level.

Organizations should also consult available guidance and other resources. There are numerous organizations and companies specializing in DEI training. In addition, some public agencies offer resources. For example, the US Equal Employment Opportunity Commission has issued some relevant material in the EEOC Training Institute.

Additional resources

Leonor Corsino and Anthony T. Fuller – Journal of Clinical and Translational Science, ‘Educating for diversity, equity, and inclusion: A review of commonly used educational approaches’
Frank Dobbin and Alexandra Kalev – ‘The Origins and Effects of Corporate Diversity Programs’
Francesca Gino and Katherine Coffman – Harvard Business Review, ‘Unconscious Bias Training that Works’

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