Workplace DEI Programs Have a Path Forward in Face of Backlash

Despite a barrage of attacks on diversity, equity, and inclusion programs, many corporate and other leaders remain steadfast in their commitments. The backlash to DEI ranges from threatening letters to actual lawsuits. Many of these efforts are simply paper tigers.

Our initiatives in this area have determined that many anti-equity cases are being thrown out, including on technical grounds, or are resolved through settlements that maintain consideration of candidates from a range of backgrounds.

While anti-equity actors continue to weaponize anti-discrimination laws created to address racial injustice, we know this contradicts these protections’ origins as highlighted by the Lawyers Committee on Civil Rights, and are without legal merit as confirmed by the Equal Employment Opportunity Commission.

Alongside these threats, we must highlight existing workplace civil rights protections including for our Muslim, Arab, Jewish, and LGBTQ+ communities who have faced increased harassment or threats including following the death of Nex Benedict, while harmful legislation is pending.

It’s critical to affirm DEI programs that, despite contrary allegations, are lawful, and communicate existing LGBTQ+ federal workplace civil rights protections.

Before you change the name of your DEI office, cut your VP of DEI, or weaken your commitment to equity, consider remaining part of the solution. This is the time to double down on commitments to racial justice, gender justice, disability justice, LGBTQ+ justice, immigrant justice, and more—not back down. Here are recommendations for navigating this landscape.

Understand what hasn’t changed. Work with your institution to understand that the US Supreme Court’s 2023 affirmative action decision addressed college admissions. Also, the court noted that students may provide, and colleges may still consider, life experiences as part of the admissions process.

Despite this narrow holding, and the range of permissible steps educational institutions can take to promote DEI, we have witnessed lawsuits from anti-equity actors challenging K-12 programs that promote inclusion, along with government programs. Notably, the arguments and data concerning the benefits of workplace diversity, as submitted by major companies to the Supreme Court in amicus briefs, haven’t changed.

Foster an inclusive and diverse workplace. US EEOC Chair Charlotte Burrows confirmed that the decision in Students for Fair Admissions “does not address employer efforts to foster diverse and inclusive workforces to engage the talents of all qualified workers, regardless of their background.” Examples of excellent DEI practices and recommendations, including the ones highlighted below, are detailed in comprehensive reports by organizations ranging from the New York State Bar to the NAACP LDF.

Ensure training on anti-discrimination laws and data collection requirements. Maintaining anti-discrimination policies and related trainings is critical so that all are aware of their rights and obligations under workplace civil rights laws. The EEOC also requires data collection for larger companies, and such filings, alongside important practices such as pay equity audits, promote accountability.

Work alongside legal counsel to monitor threats. Entities should work with employment law experts to analyze DEI programs in the face of threats. Notably, threats of lawsuits, filed lawsuits, or even settling lawsuits don’t mean that any particular DEI program is unlawful.

Employers should also bear in mind Title VII’s longstanding and significant requirements regarding hiring when it’s limited to some protected groups. In some states, companies may also need to tweak programs based on state or local laws. Resist the urge to overcorrect and maintain focus on the range of permissible DEI practices.

Engage in inclusive outreach and hiring practices. Focus outreach on underrepresented communities, including at historically Black colleges and universities, to broaden the pool of potential candidates.

Companies should ensure their postings don’t require unnecessarily onerous qualifications. Job postings can also encourage applicants who are qualified based on work experiences rather than academic credentials.

Employers must expand hiring beyond solely elite educational institutions given the range of structural barriers that can make such opportunities out of reach for many, including many students of color. Employers should also post their pay ranges—not doing so can perpetuate pay discrimination.

Take back the DEI narrative. Corporate leaders are already on record naming the business and other reasons to support DEI. Seek opportunities to highlight your commitment to equality on the basis of race, gender, disability, LGBTQ+ status, and more. Claim the value of DEI so opponents fail at chilling these vital efforts and so we can be visible as part of a broader collective movement.

Many in the corporate community and broader social justice movements have dedicated countless hours to build workplaces that are more inclusive and reflective of the rich diversity in this nation, including following the murder of George Floyd. We can’t turn back now. We can’t let these threats go unopposed. We must recommit to an inclusive, multiracial democracy.

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

Sunu P. Chandy is a civil rights attorney and is senior adviser with Democracy Forward.

Skye L. Perryman is an attorney and president and CEO of Democracy Forward.

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