Navigating DEI in a post-affirmative action landscape

Backlash against corporate diversity, equity and inclusion (DEI) initiatives quickly followed the U.S. Supreme Court's 2023 decision to end affirmative action in college admissions. However, a recent poll from The Washington Post and Ipsos found that about 60% of Americans believe DEI programs are "a good thing" for companies to adopt.

In the recent Cornell Keynote webcast "DEI, Affirmative Action and a Politically Polarized Workforce: Where We Are, Where We're Going and What Employers Should Do," David Sherwyn, the John and Melissa Ceriale Professor of Hospitality Human Resources at the Cornell Nolan School, hosts Paul Wagner, shareholder and chief financial officer of Stokes Wagner, and Holly Lawson, Noble Hotels and Resorts' senior vice president of human resources, for a discussion of the legality and structure of corporate DEI programs.

The Civil Rights Act of 1991 amended Title VII of the Civil Rights Act of 1964 to allow mixed-motive discrimination claims. What is mixed-motive discrimination, and how does it pertain to DEI?

Wagner: "The 1991 amendment took the burden of proof from race or another protected class being the sole motivating factor . . . to simply a motivating factor. Congress significantly lowered the bar so that if an employer made an employment decision and was influenced by a nondiscriminatory, nonprotected class-based reason - such as disciplinary action by the employee or something on their resume that caused them not to hire - but the plaintiff could show that race or gender or religion or any other protected class crept into their decision as simply an element, the decision was still unlawful."

Read more on the eCornell blog.