It’s easy to conclude that the era of diversity, equity and inclusion — the practice of using race and so-called intersectionality like gender preferences in hiring — is dead.
But it’s not.
In fact, DEI is likely headed for the Supreme Court, where it might get an odd reprieve from the bench’s conservative majority.
It’s the reason why there are still plenty of companies — including Microsoft, Apple, Costco, JPMorgan and BlackRock — hanging on to this progressive shibboleth even if it’s destroying what’s left of a functioning meritocracy in the workplace.
I know all this runs counter to the prevailing narrative that companies that go woke, will go broke.
I wrote a whole book on the subject.
Companies are now making headlines announcing no more DEI in hiring.
The Trump administration has ended DEI in government and federal contracting.
SCOTUS in 2023 ruled that racial preferences in college admissions are illegal.
Major brands that went woke — like Bud Light when it ran an ad featuring a trans activist sipping the beer, half-naked in a bubble bath — still haven’t recovered from the consumer backlash.
They’re now changing course.
And yet, DEI is muddling along, and at some companies, it remains as strong as ever.
One reason: Corporate managers remain significantly woke.
Another: Lawyers are telling them there is a strong legal rationale for keeping DEI as a corporate mandate, my reporting shows
All of this is why DEI’s defenestration often reflects a change in semantics.
Many companies are simply dropping the “E” in DEI because equity can be construed with hard-and-fast quotas, which are legally dubious.
Facebook chief Mark Zuckerberg, for instance, made headlines when he announced he ditched DEI; he even got rid of tampons in the company’s men’s room.
Yet with a simple Google search I found a “diversity and inclusion” section on the company website.
A Meta spokeswoman tells The Post when alerted about the discrepancy that it will be removed, adding “in no ambiguous terms — we’ve ended our DEI program.”
Meanwhile, there are some big companies where DEI remains as strong as ever.
One JPMorgan official told me, Jamie Dimon, the voluble CEO of the nation’s largest bank, believes DEI is a corporate necessity because it’s good for society and good for business, thus totally legal.
Legal rationale
Jonathan Turley, a constitutional law professor at George Washington University, explained this legal rationale for keeping DEI comes down to some vagaries in the interpretation of the civil rights laws.
SCOTUS — even with a conservative majority, he noted — could be hard-pressed to end it completely when it hears several upcoming reverse-discrimination employment cases.
It just might agree with Dimon that there is a business rationale to maintain DEI after listening to arguments that preferences in hiring aren’t quotas.
Rather, they help companies sell stuff to different minority groups, and don’t really violate the color-blind interpretation of the civil rights laws that led to SCOTUS’ canceling affirmative action in college admissions.
“On one level, it is not clear why educational institutions cannot use race in admissions, but corporations can use race criteria in hiring and promotions,” Turley said.
“Some corporations are likely to argue that racial diversity has a direct market value with customers.”
Again, a fair reading of the civil rights act would suggest race cannot be used even for a market benefit.
As one corporate lawyer advising clients on how to deal with DEI told me, the SCOTUS affirmative action precedent plus past rulings upholding affirmative action suggested a high bar for upholding preferences.
“The only time the courts have favored race being used is to address past racial discrimination and if that past discrimination can be remedied only in that way. It’s very narrow, and it’s hard to see how that applies to people working at big companies,” the legal expert said.
But who knows how the Roberts Court, led by chief Justice (and Bush II appointee) John Roberts, considers a fair reading.
Yes, it is regarded as among the most conservative SCOTUS’ ever with a seemingly impenetrable 6-3 conservative majority.
A closer look at the personalities involved shows it can make some left turns.
Roberts himself voted against striking down ObamaCare, and has rendered opinions that have angered conservatives.
Brett Kavanaugh, a Trump appointee, often votes with Roberts on controversial issues.
Neil Gorsuch, another Trump appointee has disappointed conservatives on various rulings, as has Trump appointed Amy Coney Barrett.
Holdouts
Judicial restraint — a legal philosophy that looks askance at overturning precedent — is key to understanding the Roberts Court despite its rulings on affirmative action and overturning Roe v. Wade, legal experts tell me.
Let’s just say this is a crew that doesn’t want to keep upsetting the old apple cart; it might view tearing down the final vestiges of DEI in the corporate ecosystem as overreach after it nixed college affirmative action.
That’s the betting at least at those companies keeping the DEI faith.
It’s also the rationale at many large companies that are merely ditching the term DEI, cleverly disguising the hiring and firing policies that continue to employ intersectional preferences.
[Notigroup Newsroom in collaboration with other media outlets, with information from the following sources]
