The Concept
“[A] mounting legal assault on DEI [...] is hitting an immovable object [...] Too many people in too many major institutions, including leaders of corporations, government, academia, and the military, are committed to DEI for it to disappear."
"[N]either side will 'win.' Rather, as the law inevitably evolves in a more conservative direction, the new legal standards will be absorbed into the field of DEI, transforming it as an enterprise."
Key Resource
DEI Is Under Attack. Here’s How Companies Can Mitigate the Legal Risks
By Kenji Yoshino and David Glasgow, NYU School of Law, in Harvard Business Review (paywall)
Key Points
“What Makes DEI Risky?”
"A DEI program is most risky when it meets three criteria:
It confers a preference, meaning that some individuals are treated more favorably than others.
The preference is given to members of a legally protected group, such as groups defined by the categories protected in Title VII of the Civil Rights Act of 1964. These are race, color, religion, national origin, and sex (including sexual orientation and gender identity).
The preference relates to a palpable benefit, such as a job, a promotion, a pay raise, a work assignment, or access to training and development opportunities."
How Organizations Can Mitigate Risk
"These three risk criteria also point the way to how organizations can mitigate risk in their DEI programs: avoid preferences, avoid protected groups, or avoid palpable benefits."
"Rather than giving 'preference' to some groups, organizations can explore DEI actions that are identity-neutral but remove bias from the workplace. Limit direct dependence on participants’ membership in protected groups”
"The next option for reducing legal liability is to avoid protected characteristics such as race or sex."
"Organizations also can reduce legal risk by avoiding palpable benefits [...] one safe harbor for organizations is to create DEI programs that build a more diverse and inclusive workplace culture overall, but do not directly affect the benefits or employment opportunities of individual workers."
Further Reading
From the Source
DEI Is Under Attack. Here’s How Companies Can Mitigate the Legal Risks, Harvard Business Review (paywall)
This Harvard Business Review article is authored by Kenji Yoshino and David Glasgow, faculty director and executive director (respectively) of the Meltzer Center for Diversity, Inclusion, and Belonging at NYU School of Law.
Learn more: Meltzer Center for Diversity, Inclusion, and Belonging at NYU School of Law
