WASHINGTON — The ongoing backlash against diversity, equity and inclusion work may leave employers with the sense that DEI is a short-lived trend. But that perspective ignores both history and legal reality, speakers told attendees at the American Bar Association’s labor and employment section conference on Thursday.
Stacy Hawkins, professor of law at Rutgers University, said DEI’s constituent parts have their origins in the broader U.S. civil rights movement. The decades that followed this era saw backlash in a variety of forms, such as opposition to affirmative action policies, but the work to address DEI’s components continued.
“This is not a new story,” Hawkins said. “We’ve been here a long time.”
A number of trends indicate the potential for a DEI revival. Per Hawkins, this includes the sheer demographic shift in the U.S., with the 2020 census finding that more than half of Americans ages 18 or under identified either wholly or in part with nonwhite racial or ethnic groups.
Then there’s the financial piece. Hawkins cited data published earlier this year by The Conference Board, which found that 63% of U.S. worker respondents said they would not, or would only reluctantly, work for a company that did not take DEI seriously. Given that some estimates pin the average cost of turnover at more than $45,000 per employee, those numbers add up, Hawkins said.
On the compliance front, employment discrimination claims can result in costly payouts for employers, even amid the U.S. Equal Employment Opportunity Commission’s broader anti-DEI shift. Charlotte Burrows, former EEOC chair, emphasized this point in a separate session, stating that federal antidiscrimination law has not changed.
Employers, she added, should take care to distinguish DEI from concepts like affirmative action. This is key because, while the latter has been scrutinized by entities like the Supreme Court in recent years, the former lacks a formal legal definition and has not expressly been outlawed, Burrows said.
The former chair also noted the role that state-level regulators play, with many “eager to step into the enforcement gap” currently present at the federal level. State governments also have enacted disparate impact provisions at a time when the concept has been rejected by the Trump administration.
Roya Vasseghi, founder of Vasseghi Law Group and a co-presenter with Burrows, said it’s nonetheless important to follow how the administration has gone about targeting what it has defined as illegal DEI discrimination. In the past, EEOC has said that this may include the use of quotas or balancing of workforces based on protected characteristics, among other actions.
“DEI programs don’t need to go away,” Vasseghi said. “They just need to be looked at to ensure you’re not exposing the company to the risks identified in these cases.”