In the wake of a landmark affirmative action decision, there have been cases where businesses have had to defend their racial diversity and inclusion (DEI) programs in court. To counter legal attacks, some companies are strategically altering language surrounding eligibility criteria for their DEI programs, specifically downplaying references to minorities.
The alteration of diversity program language has proven to be an effective defense strategy. An instance of this can be seen in the case of Morrison & Foerster LLP. A discrimination case against the law firm, brought forward by conservatively driven American Alliance for Equal Rights (founded by activist Edward Blum), was dropped following an adaptation of their DEI program’s eligibility criteria. Morrison & Foerster removed the term “underrepresented groups” from their diversity program’s criteria.
Similar strategy has been adopted by other law firms that came under the legal scrutiny of Blum’s group. Both Gibson, Dunn & Crutcher LLP, and Perkins Coie LLP have made similar modifications in their diversity program language.
The rise of these cases highlights the legal minefield companies may find themselves in amid attempts to foster diversity and inclusion, prompting a necessary shift in how they frame their DEI initiatives to avoid potential bias allegations.