DEI Strategies and Compliance v9

RESOURCE CENTER

The Supreme Court’s recent decision striking down the race-conscious admissions programs at Harvard and UNC has raised a host of questions about the future of corporate DEI programs, which already were facing challenges in the form of “reverse discrimination” lawsuits and shareholder proposals. That trend is sure to gain momentum in light of the Supreme Court’s decision.

Know and Understand Applicable Law

Erin M. Connell

Mike Delikat

Andrew Livingston

Katie Mantoan

Gary Siniscalco

Julie Totten

Jill Rosenberg

Know the Applicable Law

Impact on Corporate DEI Programs

Balancing Legal Risk & DEI

Balancing Legal Risk and Advancing DEI in the Workplace

Unpacking the Impact of the College Admissions Decision on Corporate DEI Programs

DEI Strategies and Compliance

Now is the time to ensure DEI programs are legally compliant, both on paper and in practice.

THE BOTTOM LINE:

Section 1981 of the Civil Rights Act of 1866 Title VII of the Civil Rights Act of 1964 The Equal Pay Act The Age Discrimination in Employment Act Titles I and V of the Americans with Disabilities Act Other federal, state, and local laws and regulations

Rarely, if ever. And that is not new. Consult with experienced counsel to discuss your company’s program and whether it fits within a narrow exception.

What are the governing statutes?

When can a protected characteristic be considered in employment decisions?

Litigation, including potential class action litigation depending on the circumstances Shareholder proposals Public relations and/or media backlash Employee dissatisfaction and/or retention problems

What are the risks?

Federal Non-Discrimination Employment Statutes 42 U.S.C. § 1981 ESG Litigation Trends: Answers to Frequently Asked Questions (Jul 2023) ESG Litigation and Regulatory Enforcement Action (Mar 2023) Achieving Workplace Equity in the New World of Pay Transparency and DEI Disclosures (Apr 2023) DEI Initiatives under Attack by Activists (Oct 2022)

Where can I learn more?

Read the full opinion >

What is the Supreme Court affirmative action college admissions decision?

Litigation Targeting Large Company DEI Programs on the Rise (Sep 2024) How Companies Can Prepare for the Next Round of DEI Litigation (July 2024) Discerning the EEOC’s Stance on Corporate DEI Programs (June 2024) Muldrow v. City of St. Louis: In Good News For Employers And DEI Programs, The U.S. Supreme Court Requires Title VII Discrimination Plaintiffs To Show Workplace-Related Harm (Apr 2024) Corporate DEI Initiatives: Why Legal Challenges Increasingly Cite Section 1981 of the Civil Rights Act of 1866 (Apr 2024) DEI Initiatives in Reverse Discrimination Claims: Circuit Courts Weigh-In (Apr 2024) Walking the Line: Employers Caught in the Middle of Discrimination Lawsuits (Feb 2024) “Affirmative Recruiting” Under Title VII: Is it Still Permissible After the Students for Fair Admissions Decision? (Nov 2023) NYSBA House of Delegates Approves Report on Advancing Diversity in Wake of SCOTUS Decision on Affirmative Action (Nov 2023) How Employers Can Take A Measured Approach To DEI (Sep 2023) Mike Delikat and Jill Rosenberg Co-Lead Effort to Analyze Impact of SFFA Decision on Corporations and Law Firms in Newly-Released NYSBA Report on Advancing Diversity (Sep 2023) Orrick Speaks: Erin Connell is quoted in Law360’s Separating Fact From Fiction As DEI Critics Step Up Attacks (Sep 2023) The Impact of the Supreme Court’s Affirmative Action Decision on Employer DEI Programs (Jul 2023) Orrick Partners Serve on N.Y.S. Bar Association Task Force To Address Supreme Court Affirmative Action Decision (Jul 2023) U.S. Supreme Court Has Not Foreclosed DEI Initiatives in Corporate America (Jul 2023) Orrick Speaks: Mike Delikat Talks with The New York Times About the Impact of the Affirmative Action Ruling on Corporate Recruitment and Hiring Practices (Jul 2023) Orrick Amicus Efforts Back Racial Diversity in College Admissions in U.S. Supreme Court Case (Aug 2022) Washington Bar Association and Women's Bar Association of the District of Columbia Amicus Brief (Aug 2022) Applied Materials, Inc., et al. Amicus Brief (Aug 2022)

What impact does the decision have on corporate DEI programs?

Does your organization have DEI programs or initiatives and documentation? We recommend a robust, privileged audit of the programs, initiatives and documentation.

What does DEI training look like within your organization? We recommend that DEI training materials are reviewed for clarity and legal compliance. And don’t forget to train the trainers.

Does your organization use diverse slates? We recommend a careful examination of diverse slate protocols to ensure legal compliance.

What does the pipeline look like? Consider expanding recruiting efforts to maximize a pipeline of well-qualified applicants.

Is your organization partnering with community resources? Consider partnering with non-profit or educational organizations dedicated to relevant early-career support for students with diverse backgrounds to better develop talent for the future, particularly in specialized fields.

Are your recruiting and hiring guidelines up to date? Review guidance and training materials to ensure clarity and legal compliance.

Orrick’s lawyers partner closely with clients on these issues, reviewing and evaluating existing and proposed DEI programs and initiatives to ensure legal compliance while allowing for forward progress. We welcome a conversation about how we can help your organization.

Laura Becking

Lisa Lupion

Andrew Livingston

Esther Lander