The labyrinth of employer diversity programs seized the legal limelight with the Supreme Court’s Students for Fair Admissions decision. Ever since, corporate legal teams have been grappling with the potential challenges posed to their diversity, equity, and inclusion (DE&I) policies and programs. Given the recent spate of litigation in the sector, this trend of legal challenges is expected to soar, with an alarming letter from 13 Republican states throwing fuel on the fire.
As presented in this insightful discussion post Supreme Court decision, entities are advised to consider a set of seven steps when evaluating the potential legal encounters to their DE&I initiatives:
- Stress-testing the defensibility of their programs under Title VII, ADA, and ADEA provisions
- Evaluating the necessity and sufficiency of these programs, from both legal and business perspectives
- Scrutinizing the applicability of class action or EEOC systemic action defenses
- Assessing vulnerability to claims based on disparate treatment or disparate impact theories
- Reviewing the programs’ compliance with OFCCP requirements and voluntary action provisions
- Developing robust protocols for internal and external communications related to DE&I issues
- Adopting comprehensive strategies for managing potential PR challenges tied to DE&I policies and programs
Notably, the insights involve stressing the importance of preparing for, managing, and successfully navigating inevitable lawsuits. By following these guidelines, corporations and law firms can ensure they stay on the right side of concerted political efforts to reshape the legal landscape around DE&I policies and programs.
This article serves as a reminder of the continuous vigilance required in today’s shifting legal landscape, particularly for those tasked with developing and maintaining employer diversity programs.