Supplemental materials for LEAP 2025 session A New Day For DEI
Last year’s Supreme Court decision in Students for Fair Admissions v. Harvard, which prohibited affirmative action in college admissions, unleashed a torrent of litigation that extends far beyond the halls of academia. Several conservative advocacy groups have filed numerous lawsuits against employers, arguing that the same reasoning the Supreme Court used to strike down affirmative action should also apply to employer initiatives designed to promote diversity, equity and inclusion in the workplace.
Especially under fire are programs like employer-sponsored mentorship programs that list specific protected characteristics as pre-requisites to participate. For example, several law firms have been sued for offering internships designed specifically to attract minority, disabled and otherwise marginalized candidates.
As a result, employers have begun reassessing their DEI programs—and sometimes abandoning them. However, many employers have responded by revamping and rebranding their DEI programs. Many no longer apply the term “DEI” to their initiatives. For better or worse, it has become a lightning-rod label for critics to attack. The hope is that avoiding it will attract less attention from outside groups inclined to file reverse-discrimination lawsuits.
More substantively, many employers no longer refer to diversity and equity as program goals, instead focusing on inclusion.
Approaches to inclusion
One approach is to emphasize the broad goal of attracting a broad pool of applicants from which to choose, rather than using numerical goals based on candidate demographics. Inclusive language is showing up in corporate documents such as shareholder communications, proxy statements and Securities and Exchange Commission filings.
Employers are also refocusing on broadening the places where they recruit talent. The desired result: to naturally and organically end up with a more diverse group of applicants from which to choose.
Many employers have responded by investing in employee resource groups aimed at supporting workers who are veterans and first-generation Americans, as well as those who face challenges around issues like balancing caregiving roles. Those distinctions are all neutral in terms of race and other protected characteristics. However, properly designed, such initiatives signal the employers’ commitment to helping members of underrepresented protected classes succeed in the workplace.
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