‘Refresh, Don’t Retreat’: Former EEOC Commissioner Chai Feldblum’s DEI Advice to Employers

Yesterday, my law partner Amy Epstein Gluck and I hosted a Zoom conversation with former EEOC Commissioner Chai Feldblum on the legal boundaries of workplace diversity, equity, and inclusion (DEI).

Given the political climate and a flurry of legal developments—including EEOC inquiries and high-profile settlements—many employers are wondering: Can we still do DEI?

Chai’s answer? Yes—if you do it smart, inclusive, and legal.

TL;DR

✅ DEI done right is still legal—and valuable
✅ Don’t confuse inclusion with unlawful preference or exclusion
✅ The law hasn’t changed, but the scrutiny has
✅ This is a time to refresh DEI, not retreat from it

DEI and the Law: What Employers Need to Know

Chai was clear: Title VII doesn’t prohibit DEI. It prohibits discrimination based on protected characteristics. There’s a difference.

But she also emphasized that missteps happen when DEI efforts cross the line into preference (“We must hire a woman for this role”) or exclusion (internships that bar non-minorities). Employers need to evaluate how they pursue diversity—not just that they do.

As Chai put it, “You can’t make race or sex the deciding factor—but you also shouldn’t ignore lived experiences. It’s blurry. But that doesn’t mean it can’t be done right.”

A Refresh, Not a Retreat

Amid rising political pressure, Chai encouraged employers to refresh their approach to DEI—not abandon it. Her top takeaways:

Don’t stop using inclusive language like pronouns
Train more, not less—especially around civility and respectful workplaces
Keep affinity groups open to all allies
Review goals to ensure they don’t rely on unlawful quotas
Use demographic data for internal insight—but don’t tie it to employment decisions without legal vetting

She also noted that training should change behavior, not beliefs. As she put it, “If your idea of a compliment is telling someone they look sexy in that dress, say it at home—not at work.”

So What Should Employers Do Now?

If you’re responsible for compliance, culture, or both, here’s what Chai recommends:

Reaffirm your commitment to inclusion—loud and clear.
Audit your current DEI programs for legal risk.
Invest in meaningful training (not off-the-shelf, box-checking).
Look at your numbers—including promotions and retention.
Get legal advice before implementing DEI goals tied to hiring or advancement.
Don’t concede the language—“Diversity,” “Equity,” and “Inclusion” still matter.

And if you’re thinking of rebranding your DEI efforts to avoid controversy? Chai’s take: “Say less if you need to—but don’t do less.”

Final Thought: Optimism from the Inside

Despite today’s challenges, Chai remains optimistic. Why?

Because she spent two years counseling employers after leaving the EEOC—and saw that many organizations still care deeply about building inclusive, lawful workplaces.

“This isn’t about politics,” she said. “It’s about creating workplaces where everyone can succeed—and doing it in a way that aligns with the law.”

I’ll be posting a link to the full recording soon. In the meantime, take a look at EEOLeaders.org, a new resource Chai and other former EEOC leaders launched to help employers stay on solid ground.