DEI Is Under Attack. Here’s How Companies Can Mitigate the Legal Risks.

In June 2023, the Supreme Court effectively ended race-based affirmative action in higher education in the Students for Fair Admissions (SFFA) case. On the heels of that decision, newly empowered activists have brought a barrage of challenges against workplace DEI efforts. When it comes to DEI today, the authors predict that neither side will “win.” Rather, as the law inevitably evolves in a more conservative direction, the new legal standards will be absorbed into the field of DEI, transforming it as an enterprise. While this shift will occur organically, smart organizations can avoid a lot of pain and expense by thinking about how to adapt in a more intentional way. The authors identify three criteria that make DEI programs most risky and offer solutions to help organizations mitigate legal risk while maintaining the core project of building a more just future.