Moderator Judge Elizabeth S. Strong, U.S. bankruptcy judge for the Eastern District of New York, opened the program “Navigating the Brave New World of DEI: What Courts Have Said and What’s Next” at the ABA Midyear Meeting in Phoenix Feb. 1 with a line that summed up the event: “It’s a brave new world, but it’s the same old stuff.”
Panelists discussed the implications of the U.S. Supreme Court’s Students for Fair Admissions v. Harvard decision that eliminated race-based college-admissions practices, related federal court decisions and recent presidential executive orders for various fields including legal education, bar associations, in-house counsels, law firms, businesses and government.
Despite Supreme Court rulings and executive orders, the panel was mostly optimistic about the future of diversity programs.
Iván Espinoza-Madrigal, executive director of Lawyers for Civil Rights in Boston, said that while DEI has become “a third rail,” it is important to note that the Harvard decision only referred to “engineering” the racial makeup of a class. He suggested looking at the Harvard ruling as “narrow” and “not expanding Harvard into other venues” beyond higher education.
Espinoza-Madrigal said some law firms merely made “surgical” changes to their programs and that policies “look a lot like they did before.”
He urged lawyers to not be timid about building up their programs for the future.
Past ABA President Paulette Brown talked about the effects on bar associations and how some attacks and litigation have impacted diversity programs.
Brown encouraged people to stop talking about the negatives. “Emphasize that seven out of eight groups are staying the course,” said Brown. “Do not succumb to fear. They are counting on it.”
Meredith Gregston of Hunton Andrews Kurth LLP stressed the importance of word choice in crafting programs and how certain words could “veer a program into discrimination.” She said the important thing to remember in crafting these programs is “to provide opportunity.”
Senior In-House Counsel at Exelon Anne Gwal talked about the need to “be able to show to leadership how critical these programs are.” Demonstrating the programs’ benefits to the company will win the day.
Christina Sarchio, president of the Hispanic National Bar Association, talked about law firms that faced litigation from groups in the wake of the Harvard decision. She said that there was so much misinformation and fear over vulnerability that many firms caved to the pressure and eliminated programs. But Sarchio said that adjusting the wording or making modest changes to programs could still accomplish the goals of creating a more diverse workplace.
“I worry a lot of organizations and law firms are using this as an excuse for getting rid of programs they didn’t want,” she said.
The government perspective was discussed by Jenny R. Yang, strategic partner for Working IDEAL, past chair of the Equal Employment Opportunity Commission and director of the Office of Federal Contract Compliance Programs. Yang pointed out that case law has not changed on inclusivity programs and Title VII and that much of the language in recent executive orders is “an attempt to intimidate.” Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin.
Yang also stressed that diversity programs help keep and recruit employees and called it a “business imperative.” She cautioned groups about backing away from diversity initiatives out of fear of litigation or attacks.
“Don’t think retreat is the safest course,” she warned.