DEI policies have been under the spotlight – and been more frequently attacked – since a Supreme Court ruling issued last year effectively ended race-based affirmative action in higher education.
Although that ruling did not address employment, it nonetheless emboldened DEI critics to launch more focused attacks on DEI programs in the workplace.
For example, a letter signed by the attorneys general of 13 states warned a group of Fortune 100 CEOs that they would “face serious legal consequences” if they took DEI efforts too far by discriminating based on race.
Multiple lawsuits have also been filed to challenge DEI practices that allegedly discriminate in an unlawful way.
State legislative efforts to curb DEI programs have gone “frighteningly well” at least with respect to institutions of higher learning, according to one commentator on the subject.
Others have warned that the death of DEI may be imminent.
DEI debate heating up even more
The DEI spotlight is now burning brighter than ever, being fueled most recently by a series of online posts between business titans Mark Cuban and Elon Musk.
The spirited exchanges between the two began after Cuban posted that although he has never hired anyone “exclusively” based on race, gender or religion, “race and gender can be part of the [hiring] equation.”
Musk responded by attacking Cuban’s support of DEI programs. Musk has said that “DEI is just another word for racism” and has also argued that diversity efforts by United Airlines and Boeing have made air travel less safe.
Things got even more interesting when EEOC Commissioner Andrea Lucas jumped into the fray. While she did not go nearly as far as Musk in disagreeing with Cuban, she did say via her own post that Cuban was “dead wrong” on what the law says.
What it says, she explained, is that race or sex cannot be a motivating factor when making employment decisions.
‘I’m deeply concerned,’ EEOC official says
“I’m deeply concerned that when people focus on equity-focused solutions, they are not actually fixing existing discrimination — and they may be trying to fix existing discrimination by introducing more discrimination,” Lucas later added. “But a cycle of discrimination is never going to fix anything. Two wrongs will never make a right,” she said.
Those comments call to mind a quote delivered by Chief Justice John Roberts in a 2007 Supreme Court ruling that struck down the use of race to decide which students would attend certain public school district schools.
“The way to stop discrimination on the basis of race,” Roberts said, “is to stop discriminating on the basis of race.”
Whether a particular DEI program is legally compliant is ultimately dependent on how the term is defined and what specific measures are put in place to implement it.
It’s an important point to remember: These programs are not per se illegal – the legitimacy of any specific program depends on its particular contours and its implementation.
DEI programs: 10 tips
Here are 10 specific points to keep in mind when formulating a workplace DEI program:
- A program that sets blatant preferences based on race, sex or other Title VII protected categories is illegal because it violates that law.
- Programs should encourage a diverse range of candidates to apply to open positions without expressing a preference for a protected category such as race.
- Title VII regulations permit affirmative action in very limited circumstances, advising that it is allowed when it reasonably responds to a self-analysis and resulting conclusion that it is needed.
- Do not use quotas in connection with DEI programs.
- Incorporate a definition of DEI that focuses on how a candidate’s diverse experiences as an individual are valuable to the employer.
- Make sure your DEI policy language incorporates non-discrimination as an essential element.
- Train managers and other leaders on inclusive recruiting, hiring and retention strategies.
- Set DEI goals, and measure progress toward them.
- Develop and implement a mechanism that employees can use to provide feedback on the program.
- Establish a budget that is sufficient to fund the program.