It surprises me that these programs were ever legal.
It is strictly illegal in Australia to consider factors like gender or race when hiring. Even capturing these details from applicants is problematic in most cases.
The compensation payable if caught can be enormous, in the order of a years salary per applicant. It’s not even necessary to prove that a specific applicant was discriminated against, simply having a process which is likely to discriminate is sufficient.
The truth is it comes down to the exact details of the policy whether it's legal. There's tonnes of things you can do to increase diversity in legal ways. For example, Google recruits at college campuses, they must have selection criteria for which campuses they visit, no matter what that policy is it's de facto a diversity strategy.
As for whether it's fair. It seems pretty dependent on your view of the world. If your base case is that without any regulations you'll just get the best person for the job, then these programs all look like an aberration. But if your base case is that hiring isn't fair - people hire their family, their friends, people from their alma mater, people from their church etc. Then putting in a programme to mitigate the biases that do exist seems like a reasonable thing to do.
Other countries often have a clearer separation of responsibilities between government and business.
Governments are responsible for addressing social inequity, while companies simply hire whoever best meets their needs (within the constraints of antidiscrimination laws).
In America these responsibilities seem to have become blurred, resulting in an XY problem whereby people debate which hiring policies are best at addressing certain societal problems, without questioning whether it is even appropriate for companies to be taking on that responsibility in the first place.
It's not "strictly illegal" in Australia. Our anti-discrimination bodies across the country frequently grant exemptions to employers allowing sex-based or race-based discrimination in favour of certain groups (e.g. women, Aboriginal or Torres Strait Islander people), in order to "improve access to specific jobs, programs or services".
I recall we have a specific carve out for Aboriginal and Torres Strait islanders, and I recall seeing specific hiring drives especially around the public service (I also am aware that elements of the federal government had a program specifically targeting autistic people too, which is also a protected characteristic)
Theres also 2 forms these DEI programs took.
1. (The FAA Thing) where they specifically manipulated their hiring system to ensure a greater percentage of african americans.
2. (What a lot of the tech companies did) Write tons of new HR documentation, and add checks and balances to ensure that the implicit bias of the hiring manager didn't result in a biased outcome.
Theres really nothing wrong with 2 in an Australian context other than the extra overhead. The overhead was carried for a while as it allowed companies to signal alignment with political stances. They are shelving these programs to signal differently.
Honestly I cant completely hate the idea of 2 either. I despise the idea of more HR people drawing paychecks, but I recall an incident 20 years ago where our team couldn't hire a woman because the all female HR team unilaterally decided she wasn't technical enough, and bounced her out of the running without telling the hiring manager. (The applicant was conventionally attractive and younger than the HR team)
It is, and always was, illegal to hire or not hire someone based on their race (or other protected class). You cannot legally just use quotas. At the same time, the EEOC will find a way to sue you if you are a large company with a lower proportion of minority employees than population. So companies had to get creative.
Trump EEOC will not do that. It's questionable if the EEOC even has the power to do that anymore after recent supreme court decisions that weaken regulators in general.
DEI programs favoring a specific race is the exception to the norm. DEI is supposed to be about stopping discrimination and bias. A common recommendation of DEI programs is to replace names with numbers so people looking at the resumes racial biases can't influence decisions.
It is strictly illegal in Australia to consider factors like gender or race when hiring. Even capturing these details from applicants is problematic in most cases.
The compensation payable if caught can be enormous, in the order of a years salary per applicant. It’s not even necessary to prove that a specific applicant was discriminated against, simply having a process which is likely to discriminate is sufficient.