Ending DEI in Health Care Runs Risk of Lawsuits, Diminished Care

Health-care entities that roll back their diversity, equity, and inclusion programs because the Trump administration has threatened to withdraw federal funding and launch investigations might end up hurting themselves in the long run.

Some institutions are renaming “diversity” and “health equity” but continuing the underlying programs. Others have scrapped DEI programs altogether—even when policies are legally defensible and advance critical work. Still others have expanded their DEI work or decided to sue the administration. In this moment of targeted escalation against civil rights and science, hospitals must operate out of a clear-eyed understanding of federal and state law—not out of fear.

Surprisingly little about the law concerning DEI has changed in the past two months. Congress hasn’t amended any federal statutes. The US Supreme Court hasn’t issued new opinions. And federal agencies haven’t promulgated any new regulations.

The Trump administration’s desire to change law by executive declaration faces an uphill battle. As one federal judge remarked when halting major portions of two of President Donald Trump’s anti-DEI executive orders, DEI efforts “have been widespread and uncontroversially legal for decades.”

The administration has pointed to an ironic source to defend its DEI stance—civil rights law. The equal protection clause of the 14th Amendment of the Constitution, alongside 20th century civil rights laws, prohibit discrimination based on race and sex.

Invoking these sources of law, a Jan. 21 executive order stated the “medical industry” has “adopted and actively use[s] dangerous, demeaning, and immoral race- and sex-based preferences.”

But health equity programs aren’t discriminatory—they counteract discrimination. DEI programs can expand physicians’ understanding about the communities they serve; develop more effective health-care systems; infuse cultural competence and humility so clinicians treat patients with dignity and respect; ameliorate racism, sexism, and bias; reduce harassment in the workplace; and address the social determinants of health.

These pivotal lessons are vital not just to improving health-care outcomes but also to promote an inclusive medical system.

A Feb. 14 “Dear Colleague” letter from the Department of Education purported to crack down on the use of “proxy” metrics, such as socioeconomic status, to foster racial diversity. The letter, which is not legally binding and is being challenged in court, claims the Supreme Court’s 2023 decision Students for Fair Admissions v. Harvard prohibits actions taken with the motive of increasing racial diversity.

This claim clashes with SFFA and with many years of Supreme Court precedent, in which even conservative justices invited institutions to pursue racial diversity and other equality-oriented goals.

Chief Justice John Roberts in SFFA described universities’ diversity-related goals as “worthy” and “commendable.” Justice Brett Kavanaugh reinforced this sentiment when he concluded his concurrence by emphasizing that “governments and universities still ‘can, of course, act to undo the effects of past discrimination in many permissible ways that don’t involve classification by race.’”

The reality is that common DEI programs in health-care institutions remain legal. We understand that Trump has ordered all agencies to end DEI programs. But it is Congress that holds the power of the purse, not the president, hence two court stays on a federal funding freeze. Trump similarly tried to withhold federal funds from sanctuary cities during his first administration and lost in court.

Compliance with civil rights law is certainly a condition of federal funding. If a covered entity engaged in race discrimination that violates Title VI, the Trump administration might attempt to end funding related to the alleged discrimination. But that requires an extensive process. In the context of common DEI initiatives, it would mean successfully arguing in court that the very programs alleviating discrimination are themselves discriminatory.

Ironically, health-care institutions are likely to increase their legal risk by eliminating DEI. The most common type of civil rights lawsuit is for race or sex discrimination, which in the health-care context involves Title VII for health-care employees, or the Affordable Care Act Section 1557 for patients.

DEI programs are a valuable tool for reducing staff bias and countering harassment and discrimination. They also reduce the risk of a hostile work environment—also a violation of federal law. Eliminating DEI might increase the number of discrimination cases that are filed and their likelihood of success.

Health-care institutions need to stand firm in the face of an administration hostile to diversity, equity, and inclusion measures and the science that supports them. For one, they should decline to roll back DEI programs in response to unpersuasive legal threats.

Second, they ought to champion the vital importance of DEI programs at the institutional level to foster an integrated, non-discriminatory environment for staff and patients, and at the public level to support the health of marginalized populations and their inclusion into health services.

Third, institutions should plan for litigation in advance by collaborating with peer institutions, setting aside funds to defend their programs, forming cost-sharing agreements so targeted institutions aren’t fully on the hook for litigation costs, having in-house lawyers prepare a gameplan, and partnering with outside legal experts who have a bird’s-eye view of the legal system.

Most of all, institutions should use their voice to defend diversity, equity, and inclusion. Physicians originally infused DEI programs into health care on the mounting evidence of health inequity and patient experiences of discrimination as well as service missions to improve safety, outcomes, and experiences for all communities.

The public support that advocates have built over the course of decades of research must not be squandered for a far-flung legal risk aimed at intimidating public servants into abandoning marginalized groups and evidence-based practices.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Daniel G. Aaron is a law professor at the University of Utah S.J. Quinney College of Law.

Jonathan Feingold is a law professor at Boston University.

Quang-Tuyen Nguyen is a professor of medicine at the University of Utah.

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