Is It Time for a DEI Comms Refresher?

September 5, 2023

The U.S. Supreme Court’s June 29 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College has without question changed the game for the use of affirmative action in college admissions.

But what, if anything, does the decision mean for employers, such as law firms, who rely on diversity programs to recruit and retain employees from underrepresented groups? As many labor and employment lawyers have counseled their corporate clients in the past several weeks, the decision in Harvard applies only to universities.

However, following his success in the Harvard case, anti-affirmative action activist Edward Blum has founded a new vehicle, the American Alliance for Equal Rights, to target employers with discrimination lawsuits. In late August, AAER sued Perkins Coie and Morrison Foerster, claiming their diversity fellowships are unlawful. And Blum is not a lone voice in the conservative wilderness. Recently a group of 13 conservative governors sent a letter to business leaders in their states warning them to stop taking race into account in hiring decisions.

There is little basis for this panic (or “panic,” depending on your level of cynicism about the motivations of the people leading this movement), because unlike in college admissions, affirmative action involving racial or gender preferences has never been a permissible justification in the employment context. Therefore, very few employers are doing the thing these governors are telling them to stop doing, or they would have faced sanction long before now. But clearly the temperature is rising, and it is important for all organizations to stay up to speed on this evolving issue.

As your firm reviews its DEI policies and programs to assess potential future legal risk, it’s also a good time to evaluate the way your marketing and recruiting teams talk about your firm’s approach to DEI initiatives. How can you continue to communicate the purpose and value of these programs?

  • Keep educating yourself on how systemic racism, sexism and other types of discrimination have shaped the legal industry across its history. The groups behind lawsuits challenging affirmative action in academia and the workplace tend to argue that “colorblindness” is the path to fairness. This stance denies the role of all kinds of bias throughout our country’s history, which has always determined who could access opportunity. (One might argue that the country club is the greatest and longest-running affirmative action program that ever was.) When you understand this history, it is easy to see that programs designed to reach underrepresented candidates are not limiting majority candidates’ access to opportunity. Far from it. The stats speak for themselves. According to the ABA’s 2022 Profile of the Legal Profession, in 2022:
    • 81% of lawyers were white.
    • Asian Americans represented 5.5% of lawyers, very close to their share of the U.S. population (5.9%).
    • Hispanics (5.8% of lawyers), however, were underrepresented compared with their share of the U.S. population (18.5%).
    • The number of Black lawyers has dipped slightly in the past ten years (from 4.7% in 2012 to 4.5% in 2022), and underrepresentation is stark, given that Black people make up 13.4% of the U.S. population.
    • One-half of 1% of all lawyers (0.5%) were Native American. The U.S. population is 1.3% Native American.
    • Over the past decade, the percentage of female lawyers has increased slowly. It stood at 33% in 2012 and grew to 38% in 2022, though women make up 50.4% of the overall U.S. population
    • A 2021 survey found 3,653 lawyers who identify as LGBTQ at 849 law offices across the country, which represents 3.7% of the 99,606 lawyers at those firms.
    • The number of lawyers at American law firms who report having disabilities remains small — just over 1% of all lawyers.
  • Reacquaint yourself and your team with your firm’s statement of values or other public commitment on DEI issues. How do those statements of belief translate into action items across the firm? How are you implementing them in your work as a marketer?
  • Remember the business case for diversity. Research has shown that teams with diversity solve problems more efficiently. Beyond being good business, there is of course also an important ethical and moral case for creating fair access to opportunity. In some ways, it feels like we have been talking about this forever, but it can’t hurt to refresh these concepts with your team.
  • Adopt a more nuanced definition of diversity that still includes and goes beyond race and gender — and accounts for the intersection of identities. The Harvard decision notes that the six racial/ethnic categories used by the U.S. Census and the Equal Employment Opportunity Commission are both “over- and under-inclusive” if the goal is to measure true diversity. Inclusion champions have been saying this for years, of course. Human identity is complex and intersectional. An individual may identify as more than one race or ethnicity, which does not necessarily overlap with a given religious affiliation or linguistic/cultural identity. Gender and sexuality are distinct, as are differences stemming from disability, economic class, military veteran status and more. Diversity is powerful because it brings together people with many different kinds of thinking and ways of approaching problems. So cast your net broadly, and inclusively, when you describe what diversity means.
  • Don’t frame diversity as a zero-sum game. Most employer diversity initiatives are designed to expand opportunity for people from underrepresented groups but not negatively impact hiring and advancement opportunities for majority-group members. (Otherwise, those programs are not legal.) But sometimes organizations use shorthand internally that might create a different impression. Now would be a good time to re-familiarize yourself with the actual criteria and processes used in your firm’s programs and ensure you are depicting them accurately in website copy, newsletters, social posts and other recruiting materials.

While it is shrewd to view this moment as a time to get your ducks in a row on DEI, it’s also a time to remember the courage of your convictions. Yes, DEI initiatives are facing greater scrutiny, but don’t let opponents of progress frame the debate with flawed and ahistorical arguments. What was true in the summer of 2020 (and every summer before that) is still true today: The brightest legal talent in our country, from every background, deserves access to career opportunity, including the advancement to leadership roles that shape the industry. And all of us have a part to play in bringing about necessary change to make that happen.