Navigating the New DEI Landscape

The conversation around diversity, equity, and inclusion (DEI) strategies, programs, and policies continues to evolve, both in the United States and around the globe. Organizations are now weighing consumer, supplier, employee, board, and/or shareholder demands for more inclusive practices against the potential threat of litigation following the US Supreme Court’s decision that race-conscious admissions policies violate the Equal Protection Clause. DEI practices continue to be closely linked to environmental, social, and governance (ESG) factors as these businesses strive for long-term sustainability and success.

Our DEI Task Force—an interdisciplinary team of more than 50 lawyers from our labor and employment, workplace culture consulting & training, crisis management, appellate, tax-exempt organizations, white collar litigation and government investigations and ESG and sustainability advisory practices—provides customized counseling on DEI and ESG considerations and objectives. In the wake of Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, global employers, Fortune 100 companies, philanthropic foundations, and their boards of directors, turn to Morgan Lewis to help balance their concerns and move forward to pursue their DEI and ESG objectives.

We counsel on the full spectrum of employment-related practices such as recruiting, hiring, retention, pay equity, and promotion. Our lawyers also advise organizations on their other diversity-related activities, as they enter into contracts with third-party suppliers and other vendors, consider corporate philanthropy and grantmaking, and develop financial investment strategies.

We also counsel on and defend our clients’ DEI programs. We represent our clients in Title VII and Section 1981 lawsuits challenging their DEI and racial equity programs in state and federal trial and appellate courts, whether they arise in employment litigation, shareholder derivative suits, or otherwise.

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As part of our DEI Task Force, our trusted advisors handle a wide array of matters involving DEI and ESG, whether organizations seek a proactive approach or responsive solutions.

  • DEI and ESG Programs: Inventory existing DEI and ESG programs across the organization, assess the possible risk arising out of anticipated challenges, and identify strategies for reducing potential domestic and global risks (including employment practices, suppliers and third-party vendor contracts, corporate philanthropy and grantmaking, and financial investment strategies)
  • Pay Equity: Conduct privileged pay equity audits to assess legal risk and to inform reporting and disclosure strategies
  • Demographic Data Analyses: Conduct privileged analyses of demographic data to assess aspirational representation goals—and ensure they are realistic and achievable and comply with nondiscrimination laws—and to ascertain risk arising under current employment practices, e.g., hiring, promotion, and retention
  • Corporate Governance: Create corporate governance and reporting structures, review public company disclosures, and advise C-suite executives and boards of directors
  • Crisis Management and Communications: Review internal and external messaging and communications about DEI programs and strategies to assess potential risk, educate decisionmakers about risk areas for domestic and global operations, and align practices and/or messaging as appropriate
  • Litigation: At the trial and appellate levels, defend against legal challenges to DEI and ESG programs, including challenges under Section 1981, individual and systemic employment claims, shareholder derivate and breach of fiduciary duty claims, and class action lawsuits