January 22nd 2024.
In December of 2023, Johnny C. Taylor Jr., the president and chief executive of the Society of Human Resource Management, expressed concern about the future of diversity, equity, and inclusion (DEI) initiatives. He predicted that in the upcoming year, these efforts would become a major point of contention. According to Taylor, the momentum that had been building for DEI since the murder of George Floyd was already starting to fade.
"It's going to be a hot-button issue this year," Taylor stated. "We're already seeing companies move away from it."
The catalyst for this potential shift was a Supreme Court ruling in 2023 that overturned over 50 years of affirmative action policies in higher education. These policies were originally put in place by admissions departments to make colleges more welcoming to Black students and students of color, who had historically faced discrimination in the education system. While the ruling did not specifically mention corporate America, it emboldened conservative groups who wanted to dismantle affirmative action to also target DEI initiatives in the workplace.
As reported by Vox, the roots of DEI actually stem from the Civil Rights Movement. It was championed by various groups that were committed to desegregating schools, housing, workplaces, and hiring practices after centuries of discrimination against Black people in American society. By the 1980s, American businesses recognized the benefits of actively recruiting and hiring diverse candidates for their companies.
However, the backlash against DEI initiatives can be seen as another branch of the ongoing conservative "culture wars." Activists like Chris Rufo, along with organizations such as the Claremont Institute and the Manhattan Institute, have labeled DEI as "radical." Some mainstream Republicans argue that DEI is a form of "reverse racism" against white people. Additionally, the Republican party's activist wing has been pushing for "race-neutral" policies, which have been proven to have discriminatory outcomes.
Following the Supreme Court's decision to dismantle affirmative action, Republican politician Tom Cotton sent a letter to 51 law firms, warning them that their DEI initiatives were now legally questionable. And in June of 2023, 13 Republican Attorneys General sent a letter to the CEOs of Fortune 100 companies, accusing them of promoting "racially discriminatory" practices and threatening legal action.
In late September, according to Fortune, an Atlanta federal judge declined to block an attempt by the American Alliance for Equal Rights (the same group that successfully dismantled affirmative action) to stop The Fearless Fund, a venture capital firm that invests in women of color-led businesses. The judge cited the First Amendment as protection for the group's donations, but a three-judge federal appeals panel later claimed that the Fearless Fund's activities were "racially exclusionary." This case is still ongoing, leaving business owners like Sophia Danner-Okotie uncertain about the future of their funding opportunities.
Major companies such as Disney and Starbucks have chosen to fight against legal challenges to their DEI initiatives, while others have adjusted their eligibility requirements to avoid backlash from conservative groups. For example, Pfizer, one of the manufacturers of the COVID-19 vaccine, changed the requirements for a fellowship program designed for college students of Black, Indigenous, and Latinx descent. While a judge had previously dismissed a lawsuit against the program, the pharmaceutical company dropped its race-based requirements. However, they still face legal action from a conservative nonprofit, Do No Harm, claiming the changes do not align with the program's intended goals.
Ironically, many of these lawsuits are based on a specific interpretation of the Civil Rights Act of 1866, which prohibits racial discrimination in hiring contracts. Originally intended to protect formerly enslaved people during Reconstruction, conservatives are using this law to argue that programs designed to benefit Black and other people of color are actually discriminatory.
Groups like the American Alliance for Equal Rights and Stephen Miller's America First Legal have been actively challenging DEI initiatives using similar arguments. Miller's group has sent letters to the Equal Employment Opportunity Commission targeting companies such as American Airlines, Macy's, and IBM, and maintains a list of "Woke Companies" on their website.
Joelle Emerson, co-founder and CEO of Paradigm, a company that focuses on DEI in the business world, addressed these attacks in a January op-ed for Fortune. "While it's not surprising to see a backlash against DEI after two years of intense focus, it's up to all of us to decide how far that backlash goes," Emerson wrote. "The more we can unite behind shared beliefs, the better chance we have of fighting back against a coordinated campaign that seeks to divide our nation and roll back the progress made in civil rights over the last two generations."
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