Attacks on DEI increase

Corporate diversity, equity, and inclusion (DEI) programs continue to face new challenges after the Supreme Court’s decision last year banning explicit use of race in admissions to higher education—SFFA v. Harvard/UNC. It’s important to recognize that although the Court’s decision didn’t change the law, it did change how corporate DEI programs are perceived and, thus, how they operate.

EEOC commissioners respond to corporate DEI challenges

As discussed in a previous article, Equal Employment Opportunity Commission (EEOC) Chair Charlotte Burrows and EEOC Commissioner Andrea Lucas responded immediately to the Supreme Court’s decision in Harvard/UNC and its likely impact on DEI programs. While Chair Burrows supported corporate DEI programs, Commissioner Lucas challenged corporations to review their DEI programs.

Most recently, in response to anti-DEI pushback from Elon Musk on X (formerly Twitter), Dallas Mavericks owner Mark Cuban said that although he didn’t make hiring decisions solely based on race or gender, he did take race and gender into account. In response, Commissioner Lucas said Cuban was violating Title VII of the Civil Rights Act of 1964 by taking race/gender into account in any way because it doesn’t allow race to be a motivating factor, plus factor, or tipping point and that it is important for employers to understand ground rules. Both EEOC Vice Chair Jocelyn Samuels and new EEOC Commissioner Kalpana Kotapal said DEI efforts properly implemented make companies more creative and better able to serve customers and clients.