From Pride to Parity: Legal Insights for DEI Cultural Events

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Nonnie Shivers: Happy to have you all here with us. We are here today to talk about celebrations and how to continue those in the current environment, including under the current administration’s scrutiny of such programs. Scott and I are going to walk you through using Pride Month and LGBTQ celebrations as an example of one of those types of celebrations, acknowledgments of historical events, or even education on protected characteristics. Since Pride Month is quickly approaching in June and many companies are considering how and when to celebrate, when to educate, and how to do it in light of the DEI executive orders and the related guidance and activities, such as the EOC, DOJ’s technical assistance. One point of interest to kick us off is that a recent study that Bloomberg reported of multiple corporate executives, and it was a study conducted by Gravity Research found that two in five executives are pulling back from Pride Month engagement in 2025 when compared to the past.
And 6 in 10 of those responding that they were dialing it back point to President Trump’s policies regarding transgender people and DEI as the driver. And some also pointed to not a majority, but 40% pointed to concerns over criticism from customers, shareholder derivative actions, as well as those who might disagree with the content of that education or celebration. So the common question Scott and I are getting across the board is should we cancel our sponsorship of such events? And in particular, right now, should we cancel our sponsorship or involvement in a Pride parade? Now, it’s not limited to Pride, right? Let’s just be clear up front. It could be the Dragon Boat Festival, it could be women in STEM, it could be anything that relates to a protected characteristic or identity, because that’s where the current issues are certainly cropping up. And it appears that public sponsorship of Pride parades, just using that as an example, is certainly on the decrease, at least as far as what’s being publicly reported for sponsorship. But when it comes to our employees, Scott, is celebration and is education on identities, on protected characteristics, is it still legal?

Scott Kelly: Yeah, I think so, Nonnie, I mean, I think that of course you’ve got… With everything you hear from us nowadays, you need to have some guardrails around the programming or the content to make sure that it stays within the legal framework. And I think generally you don’t want to have exclusionary things like that for these types of celebrations or education opportunities. Since the Trump administration took office in January, we’ve been looking somewhat because there’s been an absence of guidance or clarity, I think, is a fair statement, from the administration on what it would determine or deem as unlawful diversity, equity, and inclusion. And so, what we’ve been looking to, really trying to read tea leaves, is the way that the federal workforce is being dealt with, particularly in its embracing of certain things or continuing of that. And so right after Trump took office in January, the first kind of month next that was teed up would’ve been Black History Month. There was some concern for different employers whether they should recognize that month, whether that would be seen as illegal DEI, and we saw some mixed messages from the feds on that.
But ultimately, there seemed to be the recognition that continuing educational months or celebration months, however you want to phrase that, were legal. And as long as, again, you didn’t go out of your way to make sure it was exclusionary, or one group was getting more access or things than another one might be. Now, as bringing into Pride Month, which is upcoming, it’s also pretty evident that there is some concern by many that this administration has an animus perhaps towards the LGBTQ community. Particularly those of the transgender community, with all of the special efforts that are being taken through executive action and otherwise on impacting that community in particular.
I think we’ve seen also a little bit of an overreaction, in my opinion, with removing references to Enola Gay, that was a plane that flew in World War II, and then also to remove the information related to transgender individuals from the Stonewall National Monument where we all know that’s where the LGBTQ movement was largely regarded as beginning. So, I think it’s still lawful, but again, guardrails are important. So tell us, is there any guidance out there or technical assistance that we might need to be thinking of as we’re working through these issues with employers?

Nonnie Shivers: Yeah, Scott, and I think your points were all really, really great considerations as well, which is, we don’t need to come at this with a sledgehammer. But the devil is in the details as you always like to say. So, a few guardrails, I think, will help you stay on the right side of the law and out of enforcement crosshairs. So, one, be sure that you’ve read the EEOC’s technical assistance and other still-active guidance. We don’t want to harass, we don’t want to discriminate, but we also need to do things like engage in the religious accommodation process. And so, the EEOC is certainly after the administration crackdown on education has certainly intimated that training and, by association, education may well constitute a hostile work environment, although that legal standard remains unchanged. Executive orders and guidance, and here we’re talking technical assistance, cannot change existing federal law and does not do so.
So, keep in mind that guidance says can’t unlawfully segregate. That’s a term of art used in the guidance, not by me and Scott. So, for instance, you can’t have LGBTQ employees coalesce as a group in a separate activity and non-LGBTQ employees in a separate group. The EEOC has dialed that as segregation. You also want to have voluntary participation. And so, you don’t want to mandate that people come to this unless it’s your harassment, discrimination, or EEO, or code of conduct training, which can, of course, include reference to or education on differences and inclusion. As a legal principle, there is nothing unlawful about that, and employers would be remiss if they ended their training despite the hostility towards training evidenced in the EEOC’s recent issuances. You do want to be absolutely sure that you are allowing that voluntary participation, but also mindful of the fact that even passive exposure, someone walking by a posting or an educational information area, could draw accommodation requests.
So, for instance, posting what different LGBTQ flags mean in a passive way during Pride Month, you can read it or not as you pass, but the images are going to be there. One employer received concerns about that and said, “I need a religious accommodation that I need not see that.” So, you may be inviting some of those discussions, and it may be introducing what may be viewed as divisive issues or politics into the workplace. For that reason, it’s important that if people elect not to participate, that while we are a harassment and discrimination-free and an EEO workplace that we are not requiring people internally to value love, cherish other people, that we are requiring their compliant selves to come to work. And also, be cautious to try to be fair and equitable. So, this is not saying that you need to recognize all characteristics or celebrate all holidays.
But try to look at what you’re doing with if you have ERGs or affinity groups involved or a DEI office, look at what you’re doing over the course of a year or what you’re funding and try to have some parity or thoughtfulness surrounding that and be mindful of where the Fed sits on these issues. So, for instance, if your Pride Month training is about pronouns and the importance of those, pronouns are under attack by the administration, the White House reportedly won’t respond to anyone using pronouns. And we know that agencies are demanding that federal contractors and money recipients remove them from signatures, or the threats have been to report them to DOGE, or that this constitutes unlawful DEI according to the EEOs. So be mindful of where your risk tolerance sit. That leads us to the kind of the penultimate question, Scott, which I’d like to pose to you, which is, so using Pride as an example, but again, it could be the Dragon Boat Festival, it could be a celebration of Black History Month with a speaker, can or should you sponsor these including a Pride parade?

Scott Kelly: Yeah, I really think that it’s ultimately somewhat of a return on investment type analysis that would need to go into it, obviously using all the guardrails that you just laid out for everybody. But what’s the impact of the current economic uncertainty on your particular budget? You want to be mindful that if you’re going to be recognizing certain celebrations or cultures that you’re celebrating, you probably don’t want to be seen as providing support for one over another, back to your comment on parity. So, I think you need to make sure you’re looking at all the organization wants to do, don’t do it myopically. Look across all and make sure that there is some type of at least business decision as to how you’re going to sponsor and why that works for your organization. Not necessarily suggesting there needs to be absolute parity or balancing across the sponsorships, but I just think you need to understand what you’re willing to commit to and why you’re taking that particular approach.
I think federal contractors or money recipients might have a little bit more risk in this regard. And while I’m not sure that it would be required, I think a good practice would be refraining from using any federal funds that you would receive to pay for these types of celebrations or education events. Also, look at the optics of participating and what level you’re planning to participate in. Are you going to use some of your own branded information, or whether it’s a t-shirt with your company logo on it, or are you purchasing a float in a parade? Think about the optics that that’s going to have on your employees, your customers, your shareholders, and figure out what’s the right approach for your organization.
And then think about if anything you’re doing is going to take you out of your current risk tolerance that you’re applying to other programs in regard. Because this one is probably going to garner a bit more scrutiny and visibility given that you’re communicating or working with others in the community to try to do what you’re setting out to do is to celebrate parts of your culture that you’re proud of or that you would like people to feel more inclusive by showing them some support. So, certainly a lot to think about, and I think you set it up correctly. This isn’t just for Pride Month that’s upcoming in June, but for any of these types of cultural celebrations that would be ongoing. Nonnie, anything to add before we wrap up?

Nonnie Shivers: Yeah, one final thought, which is it’s absolutely true that we can’t be everything to everyone as an employer, but when we scale back or draw down programs, those can also affect terms and conditions of employment by the removal or rescission of programs. So, we really want to balance all interests as well as takeaways and how that will be felt and what the risk is of those, including under the Muldrow decision, which is adversely impacting terms and conditions from these issues can really go both ways, Scott. The way I would recommend closing this out is whether you celebrate Pride Month or anything else, this should be part of your ongoing, ongoing Scott, privileged assessment that you do with legal counsel internally and externally for the purposes of legal advice.
To determine not only your risk tolerance, the ROI, but leaning into the law and ensuring that you know within the scope of all of your DEI initiatives, by whatever name it may be, inclusion, belonging, DEIB, something unlawful about those terms themselves. But the devil’s in the details, as we noted. And so those assessments on an ongoing basis as the law or the administration’s approach continues to evolve, we’ll inform that risk tolerance, and the law is also evolving, while Title VII Section 1981 remain unchanged. So, those assessments become more critical than ever, and while we think of celebrations as a holiday, education is very innocuous. Those should certainly, in my opinion, be folded into these assessments. When you scope out what touches on DEI, DEIB, belonging, and inclusion, these should be considered.

Scott Kelly: Yeah, absolutely agree, Nonnie. And one thing I would wrap up is just to let our listeners know that we all are anticipating that we might see something more from this administration after May 21st, with the Attorney General’s strategic enforcement plan that was outlined in Executive Order 14173. I don’t know if that’ll have anything to do with celebrations or anything of the like. As I understand that guidance, it would really be being passed back towards different federal agencies related to some DEI issues. So, we are watching that here at Ogletree, and we’ll be sure to update our listeners if anything meaningful comes out of that that would impact what we’ve discussed today. So, be on the lookout for that, and we hope this is useful information. And thanks for joining us.

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