Why We Will Win on DEIA
On June 3, 2024, in a closely watched case, a federal appeals court halted a venture capital firm’s grant program for startups run by Black women. The case is one of many attacks on diversity, equity, inclusion, and accessibility (DEIA) programs organized by the same forces that helped limit the use of race-conscious affirmative action in college admissions through the Supreme Court’s June 29, 2023 decisions in Students for Fair Admissions (SFFA) v. Harvard College/University of North Carolina (Harvard/UNC).
Ed Blum, whose organizations brought both the Harvard/UNC and the Fearless Fund cases, is just one of many activists engaged in the anti-DEIA battle. These attacks have been brought by a broad infrastructure of legal activists and organizations, including former Trump advisor Stephen Miller, and have been funded by what has been called the “dark money ATM of the right.” GOP lawmakers and attorneys general have also joined the fray. On July 17, 2023, Republican Senator Tom Cotton sent a letter to 51 law firms suggesting that the Court’s opinion on higher education undermines the legality of corporate DEI practices. He warned the law firms to preserve relevant documents in preparation for congressional oversight hearings and private lawsuits challenging DEI programs as illegal racial discrimination. And on July 19, 2023, 13 Republican state attorneys general sent a letter to Fortune 100 CEOs, also invoking the Harvard/UNC cases and assailing DEI programs as racially discriminatory. They threatened action — “sooner rather than later” — against employment and contracting programs they perceived as illegal racial preferences.
All of these efforts are intended to intimidate, and we’re likely to see more in the months ahead.
But while there is obvious reason for concern, our laws and our values will not allow us to move backwards. Here are five reasons why pro-DEIA forces will ultimately prevail in the battle to protect DEIA and remove barriers to opportunity.
The law
DEIA supporters have the law on their side. Under Title VII of the Civil Rights Act of 1964, employers have a duty to root out systemic racial discrimination, including identifying policies and practices that create unnecessary barriers to employment opportunities for people of color. In enacting the Civil Rights Act, Congress strongly encouraged employers to make voluntary efforts to break down barriers, end occupational segregation, and increase access to opportunity. DEIA programs are designed to help employers comply with these longstanding civil rights obligations and increase opportunity. The guiding principle of carefully developed DEIA programs has been that race should not be a motivating factor in employment decisions and that any efforts to increase diversity should be grounded in expanding opportunities through improved recruiting, retention, and belonging efforts.
In their attacks on DEIA, opponents are relying on arguments that seek to manipulate and weaponize civil rights law and to use the tools of racial progress to maintain white supremacy and reverse the gains we have made in creating an America that lives up to its ideals as a nation. In addition to disregarding or misrepresenting the well-established role of the federal government in promoting equal economic opportunity, opponents of racial progress have mischaracterized the Supreme Court’s SFFA v. Harvard/UNC decisions in a cynical effort to advance a longstanding agenda of economic exclusion and discrimination. However, the Supreme Court’s decisions do not change employers’ duty to create workplaces free from discrimination, including through efforts designed to achieve diversity, equity, inclusion, and accessibility.
As the chair of the Equal Employment Opportunity Commission (the agency charged with enforcing federal laws prohibiting employment discrimination) said in response to the Harvard/UNC decisions: “It remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”
On July 19, 2023, 21 Democratic state attorneys general confirmed in a letter to Fortune 100 CEOs that addressing racial disparities or removing barriers to employment for historically underrepresented groups does not constitute unlawful racial discrimination. More recently, on June 20, 2024, a coalition of 19 attorneys general sent a letter to the American Bar Association, Fortune 100 CEOs, and other leaders to refute baseless attacks on diversity, equity, and inclusion efforts and programs and “to reaffirm our commitment to ensuring that diversity, equity, and inclusion programs continue to effectively address discrimination throughout the private and philanthropic sector.”
The politics
DEIA has bipartisan support. Both Republican and Democratic presidents have for many decades invoked the national imperative of achieving diversity, equity, inclusion, and accessibility. More recently, President Biden has issued executive orders that are consistent with this principle. These executive orders recognize that “Equal opportunity is the bedrock of American democracy, and our diversity is one of our country’s greatest strengths” and that “Achieving racial equity and support for underserved communities is not a one-time project. It must be a multi-generational commitment, and it must remain the responsibility of agencies across the Federal Government.”
Given this national imperative, more than 140 organizations have called on President Biden to vigorously defend DEIA programs, and Leadership Conference President and CEO Maya Wiley, in testimony before the House of Representatives Committee on Oversight and Accountability, recently called upon Congress to do the same.
The framing of the narrative
The vast majority of Americans across racial, ideological, and generational lines agree that corporate America should reflect the racial diversity of America, businesses should take active steps to make sure that companies reflect America’s racial diversity, and racial diversity in business leads to greater profitability and innovation. This was reaffirmed in a recent poll from The Washington Post and Ipsos. According to the Post, “The public’s support for programs used to increase racial diversity in the workplace remained steady over the past year, despite the legal onslaught such programs are facing.”
Beyond helping to meet employers’ legal obligations to create workplaces free from discrimination, DEIA programs can also make businesses more competitive, successful, and profitable. Studies show that diverse teams engage in a more rigorous and thoughtful decision-making process, making them better equipped to identify and address scientific and technological challenges. The finding of a 2020 McKinsey report found that corporations with ethnically diverse executive teams were 36 percent more likely to financially outperform their competitors than executive teams that lacked diversity. According to McKinsey, diverse leadership teams are associated with “better decision-making” and “new approaches to problem solving.” Companies with pro-diversity policies are also more innovative, even in periods of economic downturn. Diverse teams are also better able to relate to customers from other backgrounds — a vital skill in our global economy. As a result, diverse companies have higher sales revenue, more customers, greater market share, and greater relative profits.
Beyond the benefits to workers and companies, DEIA efforts foster a thriving economy. Researchers have estimated that our economy would grow by trillions of dollars per year if we closed the gaps in employment opportunities and wages that result from discrimination.
As the American public has correctly recognized, racial diversity is good for business. It is also good for the nation overall. Failure to address discrimination and ensure diversity, equity, inclusion, and accessibility is coming at a significant cost. If sufficient action had been taken two decades ago to remove these barriers to equal opportunity, research has shown that there might have been an additional 0.2 percentage point growth to real GDP per year, an additional 770,000 new homeowners, an additional $90 to $113 billion in income, 6 million more jobs per year, and $13 trillion in cumulative revenue.
In short, DEIA is vital to economic growth — while underscoring key American values of equal opportunity and fairness.
The organization of supporters
Dozens of civil rights, employment, education, labor, and public interest groups have joined together to speak with one voice on the need to protect DEIA. At a time when DEIA programs are under attack, these groups are calling for employers to double down on creating opportunities for all — and for the federal government to demonstrate leadership and provide clarity to that end.
CEOs agree. Sixty major corporations filed a friend-of-the-court brief supporting affirmative action in educational admissions in the recently decided Supreme Court case. “Acknowledging, supporting and promoting the benefits of diversity — specifically including racial and ethnic diversity — among their workforces is essential to meet client needs, achieve business goals, and strengthen relationships both internally and within the communities they serve,” the coalition of corporations told the high court.
Business expenditures are sometimes the equivalent of a vote of confidence. McKinsey & Company found that businesses worldwide spent $7.5 billion on DEI in 2020, an amount that’s expected to double to $15.4 billion by 2026.
The bottom line
Everyone has a role to play in creating a diverse, equitable, inclusive, and accessible America. Amplifying the moral and business reasons for DEIA is critical to meeting this goal. And it is equally important to push back against false assumptions.
We should be thoughtful, not fearful. We should recognize the importance of these programs to our companies and to society at large. This is the message that needs to be communicated, whether the messages are from CEOs like Mark Cuban, or civil rights leaders, or everyday Americans: America is at its best when we break down barriers to ensure all of us — no matter what we look like or where we come from — can succeed. We all benefit when Black, white, Latino, Asian American and Pacific Islander, Middle Eastern, and Indigenous people are empowered to bring their skills and talents to good jobs where they are valued and treated with respect and dignity. When employers remove unfair barriers, seek out applicants from all racial and ethnic backgrounds, and create a workplace culture that fosters respect, workers, businesses, and the nation as a whole can thrive.