DEI Risk Calculus Tests Corporate Counsel as Pressures Mount

Diversity, equity, and inclusion initiatives in the workplace have been on a political seesaw—with general counsel at the fulcrum.

Companies say they are committed to DEI, but myriad legal and societal forces muddy the future of those efforts.

In-house counsel have been smoothing the path for DEI programs for years. DEI initiatives over decades, and saw a positive inflection point following George Floyd’s murder and the nation’s racial reckoning.

But since 2020—and following the US Supreme Court’s decision one year ago striking down racial affirmative action in higher education—public support in some quarters has waned, with some employers retreating from DEI efforts in the face of internal and external pushback.

Workplace DEI remains legal, but programs at law firms and companies designed expressly to increase representation and agency among underrepresented groups have drawn lawsuits from conservative groups.

Meanwhile, politicians coined the term “woke indoctrination,” championed legislation undermining DEI efforts, and made corporations targets of boycotts and political retribution for espousing inclusive values.

Companies stand at a crossroads. Boards are looking to general counsel for guidance and assurance on next steps. How can general counsel lead?

This week, this Bloomberg Law special series brings you perspectives from leaders in government and companies, chief DEI officers, academics, and lawyers. Collectively, they say there is a way forward.

It’s paved by reflecting, articulating corporate values, and then sharpening intention. This collection distills the challenges in-house counsel face today, and, importantly, details actions for companies to meet this moment.

Today, we wrap up the series with a view from Amy Yeung, vice president and deputy general counsel at a Fortune 1000 public company, who writes that incorporating DEI in your organization requires a protected space around experimentation. “Companies should consistently support innovation that aligns with company values and create a space that destigmatizes failure,” she says. Read More

Catch up on this week’s commentaries:

Rutgers Law School’s Stacy Hawkins says that equality’s bumpy trajectory means that although corporate DEI programs may need some adjustments, organizations shouldn’t walk away from these efforts. Read More

Stinson’s Ann Thomas suggests companies can manage risks inherent in DEI programs by securing employee buy-in. “Both proponents and opponents of DEI yearn for fairness, although their definitions and approaches may significantly differ. DEI advocates can start with the value of fairness for building a consensus,” Thomas says. Read More

Ogletree Deakins’ Emily Halliday and T. Scott Kelly analyze how companies can adopt federal contractors’ approach to using metrics to inform DEI program design and risk mitigation. Federal contractors are required to establish placement goals for women and minorities and set “aspirational goals in the form of objective targets that are designed to be reasonably attainable because they are rooted in the employer’s actual workforce and labor market data.” Read More

NYU Law’s Kenji Yoshino and David Glasgow recommend organizations move away from efforts that promote specific demographic groups and instead prioritize DEI-themed programs that are available to anyone. They suggest spotlighting character in application essays, and rewarding employees for completing DEI hours through volunteer and enrichment activities. Read More

KPMG US’s Chief DEI Officer Elena Richards says companies need to weave DEI into the fabric of their unique culture, which they can achieve by setting clear intentions, measuring progress, and empowering teams to make changes. Read More

EEOC Commissioner Kalpana Kotagal reflects on her priority of making equal opportunity realistic and attainable for all workers. “Because of my family’s experiences, I know what’s possible in this country, and that it’s due in no small part to our nation’s commitment to equal opportunity,” Kotagal writes. For companies looking to end bias, she suggests starting with a thorough self-analysis of intentions for DEI and its current data. Next, employers should consider how to improve hiring practices and employee experiences, she says. Read More

Bloomberg Law columnist Rob Chesnut writes that corporate boards will likely have a say in changes to DEI policies, and that they will expect general counsel to provide them some guardrails. “While the law is in flux and there are few absolutes, the board will look to you to provide concrete examples of what’s allowed and not allowed,” Chesnut writes. Read More

As we publish stories throughout the week, we’ll update this page with links to newly published pieces.

Read more from our series of special reports for in-house counsel:

• Pillar Two: What’s Ahead for Multinationals and Why it Matters
• Working Ahead: AI, States Compound In-House Counsel Labor Headaches
• Geopolitical Risk Is the New Reality for In-House Teams
• Locked Down: In-House Legal Chiefs Fight Privacy, Security Risks
• The Power of the Prompt: A Special Report on AI for In-House Counsel

We’d love to hear your feedback. Email editors Jessie Kokrda Kamens or Alison Lake with your thoughts.