New Paradigm Shifts DEI From Box-Checking to Mindset-Building

Since the US Supreme Court’s Students for Fair Admissions decision, legal challenges to corporate DEI initiatives have often targeted “cohort-specific” programs that aim to advance members of some demographic groups while excluding others.

The ruling has increased risk of, for example, creating a grant program only for Black recipients, an internship program only for Latino students, or a sponsorship program just for women.

This shift in the legal landscape causes understandable frustration in all sorts of organizations, even beyond the lengthy list that have been sued—law firms, corporations, universities, governmental entities, and non-profit institutions. The Supreme Court has made the most common-sense tools to redress marginalization more perilous—remedies that are squarely directed at disadvantaged groups.

Yet DEI champions needn’t despair. Some promising pathways forward have emerged, shifting from a focus on cohorts to a program’s content, applicants’ character, and employees’ conduct.

Prioritize Content

The first approach is to shift DEI programs from cohort-based eligibility to content-based eligibility. Last fall, conservative activist Edward Blum sued three law firms, challenging their diversity fellowships for only allowing members of underrepresented groups to participate. The firms then changed their selection criteria to permit anyone to apply, so long as the applicant was committed to the program’s DEI objectives. After the firms made that change, Blum dropped his lawsuits.

This move from cohorts to content works widely. Organizations offer various educational and development initiatives, including internships, fellowships, mentorship programs, coaching programs, employee resource groups, retreats, business development programs, and talent networks.

Many such initiatives are only available to certain cohorts. All can now be protected by making them open to anyone while focused on a DEI-related theme. As long as anyone can apply, the theme can be as specific as the organization wishes, such as advancing of people of color or Black women.

For logistical or budgetary reasons, it may not always be feasible to invite every single employee to participate in enrichment opportunities. Yet a shift from cohorts to content wouldn’t necessarily open the floodgates. Employers could limit eligibility through any means other than belonging to a legally protected cohort, such as by asking applicants to write an essay related to the content.

Spotlight Character

Speaking of essays, the Students For Fair Admissions decision left open a pathway to discuss race in application essays. The Supreme Court observed that universities could still consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

The court emphasized that such consideration must relate to the individual: “A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination.”

This statement opens another way forward—a shift from cohorts to character. This essay-based exception has already been applied in the employment context. A medical partnership, Vituity, previously offered an incentive program with a bonus for Black physicians. In settling a lawsuit against the program, Vituity agreed that when reviewing applications for future incentives, it would “only take into consideration how race affected a physician’s life, be it through discrimination, inspiration, or otherwise.”

Other employers can do the same by inviting job applicants or candidates for promotion to submit an essay describing how race—or other aspects of their identity—have affected their life. Provided the employer uses such essays to identify job-relevant skills, this approach is a lawful means of increasing diversity in recruitment and promotion.

Emphasize Conduct

Finally, organizations can shift from cohorts to conduct by expecting employees of all backgrounds to complete DEI hours.

Employees could fulfill their hours through a range of activities, such as taking anti-bias modules, conducting campus outreach, sitting on interview panels for diversity fellowships, attending heritage month events, participating in employee resource groups, mentoring junior employees, serving on a diversity committee, joining a reading group, speaking at conferences for professional affinity groups, or volunteering with civil rights organizations.

If employees of all identities have equal opportunity to complete DEI hours, an employer could lawfully assess candidates on their DEI contributions in performance evaluation and promotion processes. Companies could also require suppliers, such as law firms, to report the hours their own employees complete as part of the bid process.

Toward Universal DEI

We recognize that moving away from cohort-specific programs involves real loss. Instead of targeting employees who need the most support, employers would make DEI initiatives available to everybody, including those with the greatest advantages. Cohort-specific programs also provide a unique opportunity for marginalized people to share common challenges in a psychologically safe environment.

Yet a more universalist approach to DEI offers opportunities as well. A downside of cohort-specific programming is that it excludes members of dominant groups in ways that hurt the cause. It can give well-meaning allies a sense that the DEI movement has no room for them. It might also give members of dominant groups an excuse to opt out of DEI efforts.

More broadly, it can stoke resentment, fueling the anti-DEI backlash that we are now seeing. Widening eligibility could help organizations clarify that everyone is permitted and expected to contribute to a diverse and inclusive culture. It could also build more durable support for DEI efforts.

In our fractious political environment, attacks on DEI aren’t going away soon. It’s also likely, under a conservative supermajority on the Supreme Court, that the law will increasingly restrict cohort-specific DEI practices that could have been permitted in a progressive climate.

Yet this doesn’t need to be an era of retreat. Leaders can use DEI themes, essays, and hours to create thriving 21st-century work cultures and withstand concerted legal attacks. Such moves can build DEI back to where it was before Students For Fair Admissions, or, dare we say, even better.

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

Kenji Yoshino is a professor at NYU School of Law and faculty director of the Meltzer Center for Diversity, Inclusion, and Belonging.

David Glasgow is executive director of the Meltzer Center for Diversity, Inclusion, and Belonging and adjunct professor at NYU School of Law.

They are coauthors of the book “Say the Right Thing: How to Talk About Identity, Diversity, and Justice.”

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