Anti-DEI Backlash: Creating Legally Defensible Workplace Metrics

Corporations may approach diversity, equity, and inclusion (DEI) initiatives via more analytically driven recruitment and retention efforts that employ indirect, race neutral, proxy measures to build a diverse workforce while avoiding legal challenges of discrimination. This assessment considers how anti-bias training practices and promotion policies to senior executive or board positions might satisfy measurable DEI outcomes without implementing diversity quotas or triggering an anti-DEI backlash from employees. Ultimately, the intent is to survive the strict scrutiny commands of the Equal Protection Clause and thereby avoid “pernicious stereotype[s]” or “race . . . used as a negative.”.

The challenges corporations must overcome to develop legally defensible DEI metrics and goals that satisfy the Supreme Court’s recent call for “metric[s] of meaningful representation” that are not based upon “proportional representation” or “racial balancing” while still preserving the litigation shield to claims of discrimination and attaining measurable DEI goals. This issue is timely given calls for enhanced corporate disclosure legislation in tune with the SEC’s approval in August 2021 of a diversity disclosures mandate for boards of Nasdaq-listed companies, along with the ongoing litigation challenging those rules in Alliance for Fair Board Recruitment, National Center for Public Policy Research v. SEC, 2024 U.S. App. LEXIS 3805.

Attorneys at any level who seek greater clarity on how to best serve legally mindful and socially responsible corporations that wish to prioritize progress on DEI goals without alienating segments of the workforce or engaging in mere virtue signaling. This includes preserving the litigation shield of corporate clients from claims of either discrimination based on Title VII of the Civil Rights Act of 1964 or concerns of reverse discrimination based on the Equal Protection Clause of the 14th Amendment.

Learning Objectives:

• Introduce core concepts in the diversity, equity, and inclusion DEI space such as equality versus equity, opinion or belief formation, stereotypes versus prejudice and discrimination
• Canvass recent legal developments in DEI at the federal and state levels in the educational context to the extent they are precursors of or predictors for ongoing legal developments in the corporate context
• Explore the possible reasons for inefficacy of DEI trainings and elusiveness of longitudinal goals to shift corporate culture and achieve greater diversity in the workplace
• Connect corporate social responsibility (CSR) praxis in the environmental social governance (ESG) context with DEI initiatives and illustrate the linkage between trends towards hard and soft information regulation
• Evaluate the vulnerability to discrimination litigation of corporations with ambiguous metrics and goals underlying DEI initiatives (e.g., trainings and long-term workforce diversity balancing goals)
• Assess “show and tell” disclosure requirements on corporate board diversity and whether soft information regulation of this variety is likely to move the needle on achieving DEI outcomes

Course Time Schedule:

Eastern Time: 1:00 PM - 3:00 PM
Central Time: 12:00 PM - 2:00 PM
Mountain Time: 11:00 AM - 1:00 PM
Pacific Time: 10:00 AM - 12:00 PM
Alaska Time: 9:00 AM - 11:00 AM
Hawaii-Aleutian Time: 8:00 AM - 10:00 AM

This course is also being presented on the following dates:

Friday, February 7, 2025
Friday, February 28, 2025
Friday, March 21, 2025
Friday, April 11, 2025
Friday, May 2, 2025