The Legal Landscape Around DEI Is Shifting. Your Messaging Should, Too.

Cross-posted from Harvard Business Review

The work of diversity, equity, and inclusion (DEI) is undoubtedly more challenging than it was a few years ago, due to anti-DEI lawsuits, social media campaigns, shareholder activism, and presidential executive orders.

By now, many organizational leaders are well aware of the need to conduct a legal review of their DEI programs. But having lawful policies in place is one part of the equation. The way you communicate about those policies matters just as much.

Based on our extensive work with corporations, firms, and nonprofits, we have identified two common DEI communications challenges, best practices for communicating about DEI, and strategies for disseminating those best practices throughout an organization.

Two DEI Communications Challenges

The first challenge is talking too much. Anti-DEI legal strategist Edward Blum noted that a researcher at his organization “combs websites of hundreds of firms looking for any evidence” of illegal DEI programs, such as those that could violate federal antidiscrimination law. State attorneys general similarly rely on public-facing materials like websites and press releases to find evidence of illegality. Any organization that wants to avoid being targeted needs to learn what language might inadvertently and falsely signal that it is engaged in illegal activity.

The second challenge is talking too little. Many leaders and employees have told us they fear that merely mentioning the acronym “DEI,” advocating for “equity,” or touting their organization’s commitment to diversity, might be legally risky. As a result, they fall silent unnecessarily. Such silence risks damaging the trust that employees and consumers have in the organization’s values. It also creates a vacuum that opponents of DEI are all too eager to fill with misconceptions, such as the narrative that DEI has ended.

We want to help leaders and employees chart a sensible course between these extremes.

When Is DEI Communication Legally Risky?

DEI communications create legal risk when a statement suggests that the organization engages in what we call the “three Ps” by conferring a preference on a protected group with respect to a palpable benefit.

Let’s go through some examples. By understanding why these examples create risks, leaders can avoid a wide range of communications traps.

Justification for DEI

Consider a statement such as “DEI uplifts historically disadvantaged groups to ensure equal outcomes.” This statement is legally risky, because the reference to “equal outcomes” could suggest some protected groups get preferential treatment in areas like hiring or promotion, which would hit the three Ps.

A better statement would either focus on removing bias or justify DEI as beneficial for everyone. Here are some alternatives:

• “DEI removes unfair barriers that prevent disadvantaged groups from competing on a level playing field.”

• “Talent is everywhere but opportunity is not. DEI closes the gap.”

• “DEI enables people of all identities and backgrounds to feel welcome and do their best work.”

Hiring and promotion

Another risky statement is “We use diversity hiring to recruit people from underrepresented racial and ethnic backgrounds.” This one could suggest the organization considers race or ethnicity in employment decisions — again meeting the three Ps. Alternatives include:

• “We conduct outreach at diverse colleges to strive for a diverse applicant pool.”

• “While we strive for a diverse mix of candidates, all employment decisions are made without regard to race, sex, or other protected characteristics.”

• “We look for candidates of any background who will advance our culture of diversity, equity, and inclusion.”

Diversity targets

Many organizations have aspirational representation goals, which some courts have said are lawful. But consider this statement: “We will increase our percentage of women leaders by 30% over the next five years to ensure our leadership reflects the demographics of our society.”

This statement could suggest the organization considers a protected characteristic (sex) when making employment decisions to reach a desired outcome.

Better statements would use aspirational, non-binding language (such as “aim,” “aspire,” or “strive”) rather than rigid language (such as “will,” “ensure,” or “require”). For example:

• “We aspire to increase our percentage of women leaders by 30% over the next five years.”

• “While we aim to increase our percentage of women leaders across the organization, all employment decisions are based on the qualifications and skills of the candidates.”

Diversity training

We’re seeing a small number of lawsuits from employees challenging DEI training programs, claiming that they discriminate against white people.

Most DEI training programs are low risk. It is lawful to discuss racism, racial bias, and even concepts that some participants might find provocative, such as white supremacy, provided that no demographic group is singled out with broad negative claims that would create a “hostile work environment” for members of that group. Depending on the culture of the organization, statements in diversity training programs could include:

• “Systemic racism has caused racial disparities in education and employment opportunities.”

• “Research suggests that implicit racial bias is widespread.”

When Is DEI Communication Not Legally Risky?

Any other DEI statements that do not invoke the three Ps are legally low risk. Leaders can still use each of the words in the DEI acronym, and advocate for:

• Greater diversity of personnel in their organization

• Fairness and equity in the organization’s policies and procedures

• A culture of inclusion in which employees feel a sense of belonging

They can also continue to highlight biases and barriers faced by members of different demographic groups and teach employees how to counteract those biases.

In addition, it remains lawful to call for greater demographic diversity — including on legally protected grounds such as race and sex — so long as the organization does not consider those protected characteristics in employment decisions.

Of course, some leaders might decide that certain DEI language (or even the acronym DEI itself) is risky for reasons that don’t have to do with legal liability, such as the danger of triggering social backlash or incurring the ire of an anti-DEI administration. But there is no legal basis to sue a company just because it expresses support for the values of diversity, equity, and inclusion.

Disseminating Best Practices

We’ve discussed what’s legally risky and not in DEI communications. But organizations are made up of individuals — sometimes hundreds of thousands of them. While no organization can control every word uttered by its employees, leaders should take three steps to encourage their people to sing from the same songbook:

Engage your public affairs or communications team.

Ever since the field of DEI has come under increased legal attack, most organizations we work with have forged a closer bond between the DEI team and the office of general counsel. In the current landscape, your public affairs or communications team is equally important to engage so that the organization is internally and externally consistent in its DEI communication.

Document your organization’s approach to DEI in writing.

An internal charter or similar document could set out why the organization supports DEI, how it defines the letters of that acronym, and how that commitment influences its practices relating to outreach, recruitment, onboarding, retention, and promotion. The charter could also explain what the organization does and doesn’t approve with respect to data collection, diversity targets, diversity training, and other policy areas.

Such a document could serve as a touchstone for organizational leaders when implementing existing DEI policies or designing new ones.

Train managers on how to communicate around DEI.

Many DEI communication errors are made not by DEI specialists but by managers who are involved peripherally in DEI activities, such as during a panel discussion at a conference or while interviewing candidates for an internship. Organizations should train people who will be talking about the company’s DEI programs to do so consistently with its agreed approach.

. . .

After an already challenging several years, the DEI legal landscape in the years ahead will get even tougher. Smart, effective communication can help organizations reduce their own risk and ensure that their DEI programs endure over the long term.