Businesses mulling diversity policy changes to avoid Trump administration enforcement have a new option: focus on socioeconomic background in place of, or in addition to, race and gender. Some legal scholars and consultants suggest companies stop focusing solely on protected traits under Title VII of the 1964 Civil Rights Act and add programs for workers from economically disadvantaged backgrounds. But they acknowledge including economic class distinctions in diversity, equity, and inclusion programs creates potential legal and practical pitfalls, even if helps fend off an Equal Employment Opportunity Commission and Justice Department targeting DEI.

“First-generation professionals,” or those first in their families in the white-collar workplace, are less likely to know “unwritten rules and social codes” to boost them in those roles, said Joan Williams, professor at the University of California College of the Law in San Francisco. Class bias can also impact hiring decisions, especially for companies using “culture fit” in their criteria, Williams said. A 2016 study using fictional resumes found law firms favored applicants with higher socioeconomic class signifiers in their applications, such as interests like polo and classical music, over those mentioning pick-up soccer and country music, when their CVs were otherwise identical.

The study published by the American Sociological Association found resumes with higher-class signifiers for male applicants received significantly more callbacks than those with higher-class signifiers for women, or with lower-class signifiers across genders. DEI trainings and programs, if limited by race or gender, can violate Title VII, according to recent joint guidance from the EEOC and DOJ. Republican EEOC Acting Chair Andrea Lucas has suggested employers consider programs directed towards first-generation professionals, including trainings, mentorships, or employee resource groups over conventional DEI she said creates bias risks.

“Make sure that’s race and sex neutral, but it can often lead towards your goal of social mobility but it’s going to float all boats and it will be vastly more legal than the one that’s race or sex restricted,” she said on the Employment Law Now podcast in 2024. ‘Land of the Unknown’ Socioeconomic-based programs could include bias trainings to discourage employers from hiring practices that disadvantage certain candidates—like preference towards elite school graduates. They could add mentorship programs to teach first-generation professionals to promote themselves at work or build networks, Williams said.

Although gearing programs toward first-generation professionals “may be deemed permissible” there’s a risk tied to it — especially as employers are “operating in the land of the unknown,” said Michelle Crockett, a Honigman LLP attorney. If it’s seen as a “workaround or substitute” for a protected category as a factor in employment decisions “these other programs could still be deemed as illegal DEI,” under Title VII by the EEOC and Trump, she said. Companies have been accused of using “workarounds” to hide biased hiring, like firings of Black employees due to dreadlocks not meeting grooming codes as the hairstyle can serve as a race proxy in bias cases .

Advocates for socioeconomic class in DEI, meanwhile, said it should add to and not replace traditional race or gender based initiatives. “This is not the only kind of bias that exists in organizations, but it’s an important and often overlooked kind,” Williams said. Trump’s DEI executive orders add different risk levels for companies depending on their ties to federal funding.

Companies doing business with or receiving funds from the government are more vulnerable. They should stray away from using socioeconomic class in place of race or gender-based programs, said CJ Gross, CEO and founder of Jabbar HR Solutions, a consulting firm centered on inclusive workplace culture. “If it seems like it’s DEI, if there is a smell within the air of DEI, a contract could be canceled,” he said.

For companies without these ties simply trying to avoid scrutiny, the shift offers a creative solution that can even amplify inclusion goals, Gross said. Using Class Classifying workers around socioeconomic backgrounds raises practical concerns, however. Unlike largely immutable characteristics under Title VII that are elements of most DEI programs, class is less discernible and can change.

Programs could be aimed at Pell Grant recipients or people who attended community college to put the focus on signifiers of socioeconomic class growing up, said Annette Tyman, Seyfarth Shaw LLP attorney. “The challenge in some respects is getting access to that information, that’s all new. And how are you going to collect and gather that information and use it in a meaningful way?” Tyman said.

Using social class is not as “clean cut” as using gender, race or other protected traits, but it offers a way to continue to bolster equity, Gross said. State civil rights law came close to addressing class with a 2023 California bill to ban discrimination based on caste, a social hierarchy in some South Asian cultures. Gov.

Gavin Newsom (D) vetoed the bill because he said caste is covered in other protected categories. Given the intersection between class and protected categories like race or national origin, even facially neutral policies can generate Title VII disparate impact claims if they have socioeconomic biases built in. Though employers were never permitted to use race as a hiring factor under Title VII, changes universities make after the US Supreme Court curtailed race-conscious admissions policies in 2023 may prove relevant.

Colleges weigh applicants on a much larger scale than employers, and used race among markers as a proxy, said Stacy Hawkins, a professor at Rutgers Law School. Using class instead could bolster corporate diversity programs like scholarships and leadership development that provides additional support for groups at work that might be disadvantaged, Hawkins said. “They were always about disadvantage.

They were always about the presumption that some people need more support,” she said. “And they were using race, ethnicity, and gender as a proxy for who needs more support, but just like colleges and universities, they can no longer use that proxy. They have to select directly for that disadvantage.”