View from K Street: Where DEI Goes to DIE

While much of the nation’s attention is being devoted to The Transition, the end of the short, unhappy life of diversity, equity, and inclusion (DEI) programs may be upon us. The ruling of the 5th Circuit barring a Security and Exchange Commission (SEC) regulation compelling companies to include more women, people of color, and LGBTQ+ directors on their boards likely signals the dissolution of DEI, as much because of its reasoning as its ruling.

DEI’s rapid expansion included the seeds of its demise

Invigorated by the 2020 murder of George Floyd by police, companies made hundreds of pledges to add people of color to their workforce as part of broadly expanded DEI programs. In short order, this initiative began to push at the limits of the law. A number of prominent corporations were making diversity numbers a basis for paying executives bonuses and adopting corporate policies that set hard targets for racial and gender representation. Special programs were created for specific underrepresented groups, ignoring the equal treatment principles of Title VII of the Civil Rights Act of 1964. Governments, both state and federal, quickly followed suit. Public universities not only made DEI a core objective, but many also demanded a “diversity statement”—a latter-day political loyalty oath—from all new hires. This prompted an all-but-inevitable reaction.