The Law of Diversity, Equity, and Inclusion

What is DEI?

In a workplace setting, diversity, equity, and inclusion (DEI) is an umbrella term referring to a range of practices. As the acronym “DEI” suggests, these programs encompass at least three different categories. Some programs focus on the “D” by aiming to diversify personnel within the organization. Some programs focus on the “E” by aiming to achieve greater fairness in the organization’s policies and procedures. Some programs focus on the “I” by aiming to build a more inclusive culture in which the organization’s employees feel a greater sense of belonging. In addition, some organizations go beyond internal initiatives to advance the values of DEI in the broader community, such as by making philanthropic commitments to civil rights organizations.

What laws are relevant to DEI?

Because DEI is an umbrella term, a wide variety of laws can affect DEI practices. The most relevant are anti-discrimination laws—including local, state, and federal legislation, as well as the Equal Protection Clause of the U.S. Constitution. The most common laws invoked in anti-DEI lawsuits are:

• Title VII of the Civil Rights Act of 1964 (“Title VII”). This law prohibits employment discrimination on the basis of race, color, religion, sex (including sexual orientation and gender identity), and national origin.

• 42 U.S. Code §1981 (“Section 1981”). This law prohibits race discrimination in the making and enforcement of contracts, including (but not limited to) employment contracts.

• The Equal Protection Clause of the U.S. Constitution. This constitutional provision states that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

Most anti-DEI lawsuits argue that a specific DEI policy or practice violates one or more of the above laws, usually because it allegedly harms members of historically dominant or majority groups.

What has caused the uptick in anti-DEI lawsuits?

Anti-DEI lawsuits have increased since the U.S. Supreme Court’s June 2023 decision in Students for Fair Admissions (SFFA) v. Harvard. The SFFA decision was focused on university admissions and did not address workplace DEI. However, anti-DEI activists have interpreted the decision as suggesting that the current Supreme Court majority is generally hostile toward race-conscious diversity efforts. Such activists have therefore used the SFFA decision as the foundation for a wider attack on workplace DEI.

Is DEI risky?

As the term “DEI” covers a plethora of activities, it is not possible to classify the whole field as risky or safe. Rather, it is better to think of some practices (like quotas) as risky and many other practices (like expanding outreach, adopting structured interviews, or conducting employee education and training) as safe.

Importantly, it is also risky not to engage in DEI. DEI helps organizations create workplace cultures in which employees from all backgrounds have an equal opportunity to thrive. It also helps organizations close significant gaps in representation. If an organization refuses to engage in DEI or winds back the DEI policies they previously had, employees from marginalized backgrounds are more likely to experience bias and discrimination, and less likely to be recruited, retained, and promoted. As such, an organization that retreats from DEI is more, not less, likely to be sued.

What forms of DEI should I prioritize in the current legal landscape?

In the current legal environment, the most risky forms of DEI are those that hit what we call the “three Ps”—they confer a preference on a legally protected group with respect to a palpable benefit. For example, a DEI policy that establishes a hiring quota for members of a particular racial group involves a preference (the quota) on a protected group (a group defined by race) with respect to a palpable benefit (hiring).

By contrast, any DEI program that avoids at least one of the three Ps is low risk. At a high level, here are a few safe DEI practices to consider prioritizing:

1. Debias workplace systems. We know from research that implicit bias can affect outreach, job advertisements, resume screening, interviews, access to mentorship, allocation of work assignments, performance evaluation processes, and promotion process (among other systems). So long as an organization avoids the three Ps, it can adopt a suite of initiatives aimed at eliminating bias from such systems so that all candidates and employees operate on a level playing field. For example, it could adopt a structured interview process in which all job candidates are assessed against the same transparent criteria.

2. Use universal DEI frameworks. Many DEI frameworks—such as psychological safety, allyship, authenticity, and cultural competence—apply to everyone and benefit everyone, regardless of their demographic background. Any DEI initiative that is universal in its application and does not benefit some groups over others will remain legally safe.

3. Upskill your workforce in inclusive leadership. Organizations can encourage or even require employees to develop DEI-related knowledge and skills, and assess employees against those competencies in performance evaluations and promotions processes. For example, an organization could teach its workers about research-backed biases and barriers experienced by particular cohorts, and expect employees to acquire skills in allyship, cross-cultural communication, and leading diverse teams.

Other safe DEI programs include:

• Expanding outreaching to broaden candidate pools

• Adopting pay transparency

• Purging stereotypical language from job advertisements and other communications

• Setting clear and job-relevant criteria for recruitment and promotion

• Adopting formal mentorship, sponsorship, and coaching programs that are not restricted to members of specific demographic groups

• Reviewing employee benefits policies to ensure they are being applied equitably

• Expanding flexible work arrangements, parental leave, and childcare support

• Adopting a fair system of work distribution so that “office housework” doesn’t disproportionately fall to women and people of color

• Developing programs that advance DEI along lines of socioeconomic status, age, and disability

• Supporting community organizations focused on DEI issues, such as through pro bono work and philanthropy

• Requiring decision-makers to undergo rigorous anti-bias training before making employment decisions