A recent study by employment and labor law firm Littler found that 57% of employers have increased their efforts to grow diversity, equity and inclusion (DEI) programs, even though 59% say backlash has increased since the U.S. Supreme Court decided to strike down affirmative action in college admissions in June 2023. This survey included responses from over 300 C-suite executives across the United States.
“In today’s environment, it’s more important than ever for organizations to assess whether their investments in inclusion, equity and diversity are achieving their desired outcomes without creating new liabilities.”
– Kate Mrkonich Wilson, shareholder and member of Littler’s Inclusion, Equity and Diversity Consulting Practice
Nearly 60% of employers have increased their DEI commitment and activity level since 2022, with 17% doing so significantly, according to Littler. Comparatively, just 6% of organizations had decreased their commitment to DEI programs. Of organizations that decreased their commitment, 50% said it was due to concerns about legal liability and litigation, such as reverse discrimination lawsuits, and 28% cited the Supreme Court’s affirmative action decision as the reason for the decrease.
While the Supreme Court’s decision only applied to higher education, it has increased criticism of corporate DEI programs and initiatives in the United States. Littler found that 59% of employers said backlash had risen following the Supreme Court’s decision. Moreover, larger organizations were more likely to report criticism of diversity programs, with 29% strongly agreeing backlash is on the rise, compared to 16% of employers with fewer than 1,000 employees.
As a result, employers are being more cautious about adopting DEI goals that could lead to litigation, such as benchmarking and metrics, and offering incentives to executives to increase diversity. Instead, organizations are increasingly focusing on adopting DEI strategies that are less likely to lead to backlash from DEI critics, such as providing training and development opportunities to diverse employees.
The study also revealed discrepancies within the C-suite. Over half (61%) of chief learning officers said they were increasing efforts around social justice initiatives, while just 11% of chief data officers agreed. This highlights an opportunity for employers to improve organizational communication to reduce legal risks and effectively implement DEI programs.
Employer Takeaways
With increasing political and legal backlash surrounding DEI programs, employers can proactively evaluate their programs to ensure they comply with local, state and federal laws. Moreover, employers can use this as an opportunity to clarify their DEI goals and improve internal communication surrounding these programs.
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