How important is a name? It is a question driven to the forefront by the recent backlash against “DEI” – diversity, equity and inclusion programs that many employers put in place to diversify their workforces. After an explosion of such initiatives in 2020 following the murder of George Floyd, there has been a strong backlash and retrenchment, with some companies dismantling entire DEI departments. Surveys from LinkedIn, Glassdoor and Revelio Labs have all reported declines in DEI positions in 2022, some of which were quite significant.
The Society for Human Resource Management (SHRM), a training and advocacy organization for human resource professionals, has responded by rebranding. It has discarded the term DEI for a new emphasis on “inclusion, equity and diversity.” As explained by SHRM President and CEO Johnny C. Taylor, reordering the words to emphasize inclusion is intended to recognize that our workplaces are already diverse, but organizations still need to work on integrating diverse individuals so they feel included, valued, respected and heard.
Does reshuffling the words really make a difference? Marketing experts can weigh in from a branding perspective. Legally, though, the words used matter little; we need to look at employers’ actions to determine what has changed, and whether change is warranted.
What is the Purpose of DEI?
Originally referred to as “D&I” or diversity and inclusion, DEI is an employer initiative that looks beyond legal prohibitions on harassment and discrimination, to instead focus on hiring individuals with a diverse range of backgrounds and lived experiences. The “e” for equity was added to the acronym to reflect it is not enough to hire and welcome diverse individuals; they also need to be provided with equal opportunities and access. Some organizations have added other words to the acronym, “a” for “accessibility” of opportunities or “b” for “belonging” (creating an ultimate sense of comfort). In all these permutations, the focus is first on bringing people in and then on ensuring they feel sufficiently welcome and included that they are willing to stay.
While the law provides protections and certain remedial actions for individual employees based on specific protected characteristics, DEI generally is meant to be broader than that. It starts with differences based on factors like sex, race, color, or national origin, and also considers differences in areas such as education, socioeconomic status, and geography, and the “intersectionality” of multiple characteristics and experiences.
Through this richness of experience, studies have shown, organizations can reduce the “group-think” approach, in which all employees tackle problems in the same way and from the same perspective. Rather, diversity has been promoted as enabling organizations to benefit from the many and varied ways in which individuals may be inclined to conceptualize ideas and approach issues.
DEI in this framework is not solely race- or gender-focused, is not exclusionary, and does not demonize white men. The public perception of DEI can be quite different.
Holding a Mirror
After the Barbie movie was released this past summer, Buzz Feed had used an AI program to generate versions of Barbie from countries throughout the world. The dolls that the program generated reflected so many stereotypes, and caused such offense, that Buzz Feed pulled its article down within just a few days. The experience, though, provides some important lessons – in the limits of AI, and as a mirror on us as a society.
AI, as we know, is not really sentient; its intelligence comes from searching and synthesizing reams of content – articles, books, images, etc. – at lighting speed, and using that to produce new work product. What AI produces, therefore, is by definition a reflection of its source material, and in that sense the international Barbie incident is a reminder of the biases and stereotypes we collectively hold on a societal level. The AI is the mirror that reminds us of the ways in which the multitude of data inputs to which we are continuously exposed shape our perceptions of others.
Some DEI practitioners seek to hold up a similar mirror in their training programs, to situate individuals in the shoes of their racially diverse colleagues and understand how their colleagues may experience daily life. Some go further and use more accusatory language. The approach is intended to make participants, particularly white individuals, feel uncomfortable as a learning technique.
Personally, as a workplace trainer, that level of blame-shifting is not my style and I question its effectiveness. Elected officials and other public figures have reacted more vocally and forcefully to that style of DEI training.
Pushback to Accusations
In September 2020, the last presidential administration issued an Executive Order that barred federal agencies and federal contractors and grant recipients from conducting diversity and inclusion training that promoted “divisive concepts” involving any form of “race or sex stereotyping” or “race or sex scapegoating.” Enforcement of the Executive Order was temporarily stayed by a court order a month after it took effect and then promptly withdrawn by President Biden upon taking office, but not without consequences, as federal agencies and covered employers scaled back or paused their diversity training programs in the interim period.
More recently, the state of Florida passed the “Stop W.O.K.E. Act,” which makes it unlawful for employers to require employees to attend training that promotes one or more of the following eight principles (quoting from the statute):
- 1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin
- 2. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
- 3. An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.
- 4. Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.
- 5. An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin.
- 6. An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
- 7. An individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin.
- 8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.
The state of Texas took a different approach with a law that, as of January 2024, forbids the state’s public colleges and universities from maintaining DEI offices, contracting for DEI programs, developing DEI statements, conducting training related to race, color, ethnicity, gender identity or sexual orientation, or giving preferences to individuals based on race, sex, color, ethnicity or national origin.
First Amendment Provides Protections
Organizations impacted by the Florida law sued to block its enforcement. Last week a federal appellate court held in Honeyfund.com, Inc. v. Governor, State of Florida (11th Cir. Mar. 4, 2024), that the law likely violated First Amendment free speech protections. The appellate court therefore upheld an injunction blocking the implementation of the Florida law.
The court reasoned that the Florida law sought to regulate speech, and not merely conduct, in that it only prohibits meetings at which certain viewpoints are espoused, and that the state of Florida failed to meet its burden of showing that the law was “narrowly tailored to serve a compelling state interest.” The court stated that, “[n]o government can ‘shut off discourse solely to protect others from hearing it.’” Therefore, regardless of whether individual employees welcomed or disliked a workplace training session that promoted any of the eight listed principles, the court held that it was not the government’s place to restrict that speech.
Where This Leaves Employers
Outside of public colleges and universities in Texas, employers are generally free, at present, to continue with initiatives to recruit, hire and retain diverse individuals. That includes conducting DEI training and hosting DEI programs. Given the current public backlash in some circles against the concept of DEI, which appears largely to be critical of programs that narrowly focus on serving the needs of specific racial groups and/or imposing a blame-focused approach, employers would be well-served in broadening their programs.
Initiatives that honor the concept of diversity in all its breadth, and that look to create welcoming environments in which all individuals feel valued, included, and respected, will further organizations’ business interests. At the same time, organizations may want to go beyond SHRM’s approach and rebrand their programs, to decouple them from the “DEI” acronym and adopt a term or phrase that conveys the sentiment and broadened focus the programs are intended to serve.
By Tracey I. Levy
