There are currently 63 DE&I lawsuits working their way through the courts. These, coupled with conservative attacks on the initiatives, and some companies changing their DE&I practices, could make some practitioners weary that their corporate policies might open them up to legal action.
However, David Glasgow, a lawyer and executive director at the Meltzer Center for Diversity, Inclusion, and Belonging at New York University School of Law, recently told HR Brew that most DE&I initiatives are legal, but practitioners should develop their legal literacy to help them drive forward strategies amid the polarized landscape.
The legality of DE&I. “The vast majority of DE&I programs that were fine before the SFFA [Supreme Court case against affirmative action] decision [are] still fine,” Glasgow emphasized. “If you’re doing things like broadening your outreach to different places to try and get a more diverse candidate pool. If [you’re] setting up a structured recruitment process by eliminating implicit bias, and creating standard interview questions and protocols…those things are perfectly fine.”
Companies have most frequently changed course when initiative, such as scholarships or internships, have been geared toward specific demographics. In early 2024, for example, PwC removed the “diversity” requirement from its Start internship program, after the company was sued by America First Legal (a conservative nonprofit) over the practice, HR Brew previously reported. Some law firms and other companies, such as Pfizer, have made similar changes to avoid litigation.
DE&I leaders should make sure their programs do not give preference to certain groups or treat people differently based on identity markers like race, sex, or religion, and do not give a concrete benefit that is not afforded to others. “Those are the DE&I practices that I would consider to be legally risky,” he said.
Disabled workers are the exception to this rule. Reverse discrimination rules don’t apply to issues of disability, in the way they apply to issues of race and gender. The laws explicitly state that people can not claim reverse discrimination for not being disabled. “I don’t think that there’s any significant risk for organizations continuing to do very progressive work on disability inclusion,” Glasgow said
Language isn’t everything. Some organizations, including SHRM and Walmart, have changed the language they use to describe their DE&I efforts to more palatable terms like “inclusion and belonging,” hoping to fly under the radar and evade scrutiny. Glasgow said that businesses are too focused on terminology, because they think the language shift will “save” them, but that’s not the case.
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West Point learned this when the conservative group Judicial Watch claimed that the military academy was still executing DE&I initiatives, even though it said it dissolved its program.
“It doesn’t really matter what you call it…if you’re in substance engaging in practices that are legally risky, then it will be just as risky as it was before,” he said, noting that conservative litigants like Edward Blum have teams combing company websites for signs of diversity initiatives.
Team up with counsel. Glasgow said that the relationship between DE&I leaders and legal teams has grown closer since the Supreme Court decision on affirmative action, and expects them to potentially ramp up in 2025.
He recommended that DE&I leaders proactively collaborate with their legal teams instead of waiting for issues to arise. “The lawyers are on the same side as them [DE&I practitioners]. They’re just trying to figure out how to do it in the most strategic way going forward,” Glasgow told HR Brew. “We are partners in this journey together, as opposed to, ‘I’m the one pushing this forward and the lawyer is the one trying to block me,’ which can just lead to conflict.”
Many DE&I practitioners don’t have a grasp of the law. Glasgow wants to see them develop their legal literacy so they can better develop programs and have more knowledgeable conversations with legal teams moving forward.
Big picture. Regardless of the rhetoric, people from diverse backgrounds are working together, and Glasgow believes that businesses should teach employees inclusive leadership skills, just like they might any other soft skill.
“Demographic change is happening in America. Whether people like it or not, racial and ethnic diversity is increasing,” Glasgow said. “The society that we’re living in is becoming more diverse and more aware of its own diversity, and so I just don't think that you can operate an organization that’s high-functioning without giving people tangible knowledge and skills for how to navigate relationships across their differences.”