Legal community braces for changes in DEI initiatives

By Jason Boleman and Kris Olson

In 2008, the American Bar Association restructured its mission statement to memorialize specific goals for the country’s largest volunteer bar association.

Goal III, titled “Eliminate Bias and Enhance Diversity,” includes promoting equal participation in the ABA and the legal profession by all people and eliminating bias in the profession and the justice system.

As an extension of the goal, the legal group created the ABA Center for Diversity, Equity and Inclusion in the Profession as DEI programs grew across the professional world, including the legal profession.

With the November election of former President Donald J. Trump to a second term, entities with DEI initiatives are bracing for potential legal challenges and changes to their programs.

But attorney Herb Rubenstein, who has taught continuing legal education courses on DEI for bar associations in Oklahoma and Virginia, said DEI programs will continue even with a change in administration this month.

“There are stakeholder groups that are not going away just because of a change in administration,” Rubenstein said.

SCOTUS effect

The tug-of-war between those who want to push DEI measures forward and those who want to pull them back began long before the election, Boston attorney Samia M. Kirmani said.

Claims of reverse discrimination were rising even before the U.S. Supreme Court‘s 2023 decision in the Students for Fair Admissions Inc. cases involving affirmative action in admissions policies at the University of North Carolina and Harvard University.

“What’s interesting is that the law hasn’t really changed,” she said. “What has changed is the uptick in claims and resistance to DEI efforts have become more common. But we’ve been seeing a push and pull for a long time.”

Rather than Trump’s election, the Supreme Court’s April decision in Muldrow v. City of St. Louis may be providing a spark, Kirmani said.

Muldrow involved a St. Louis police sergeant who alleged that she had been transferred from one job to another because she is a woman. The Supreme Court held that an employee challenging a job transfer under Title VII must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant.

Before Muldrow, it was widely believed that it would be hard to ground a Title VII claim in a DEI program or initiative, since they generally do not have a dramatic impact on employment, like promotion or termination. The bar has been lowered, although just how far remains to be seen.

“What’s being litigated is, ‘What is that level of harm, if now I don’t have to show that something really bad happened to me?’” Kirmani said. “What do I have to show? That I just was annoyed at something? Somebody else got a benefit that I didn’t get? But my title hasn’t changed, my pay hasn’t changed, no material terms and conditions of employment have changed.”

Future of DEI

Considering the recent court decisions, Rubenstein said he anticipates “a lot of litigation” in the DEI space.

However, he expects programs to continue despite the new administration.

“We now know how to set up DEI programs that are bulletproof legally,” Rubenstein said.

He noted that the incoming Trump administration could alter the way corporations, universities and government-controlled institutions work with DEI. But that doesn’t mean it will be eliminated, he said.

“DEI is also about creating a welcoming environment from the organizational perspective for everyone, [and] that’s never going to change,” Rubenstein said. “You don’t want a minority coming into an unwelcoming environment, because the turnover will be ridiculous — and has been ridiculous.”

Boston attorney Christopher S. Feudo said his clients are not immediately looking to pull back on DEI.

“I think that most of my clients already feel pretty confident that, unless the law changes, what they are doing when it comes to DEI is lawful and can be defended if anyone tries to challenge it,” Feudo said.

However, some companies and universities have begun rolling back DEI policies. Walmart announced its plans Nov. 25 to stop funding its Center for Racial Equality and will stop sharing data with the Human Rights Campaign.

Walmart joined Ford and Lowe’s as companies that have pulled back on DEI initiatives in 2024. The University of Michigan also announced Dec. 5 that it would no longer ask for diversity statements as part of hiring and when considering employees for promotion or tenure.

Firm level

The legal community is no exception to the growth of DEI initiatives in recent years.

Spencer Fane, a law firm with 28 offices nationwide, states on its website that DEI “is a shared passion” at the firm.

Nashville, Tennessee, attorney James Crumlin, who chairs the firm’s DEI committee, said the firm “takes great pride in its considerable and collective efforts to advance workforce and talent excellence through inclusion and belonging inside the firm and in the broader legal profession.”

Said Crumlin: “Our entire organization drives tireless efforts to make daily progress with an intentional and concentrated focus on identifying, attracting and retaining talent that allows our employees to better mirror the diversity of the markets we serve.”

According to Rubenstein, creating an effective DEI program may become essential for firms in the future, likening the programs to advancements in technology that attorneys have adapted to.

“It’s like artificial intelligence,” Rubenstein said. “If there’s a law firm not using artificial intelligence, do you think I’m going to hire those people? It’d be like a law firm not using computers.”

Rubenstein emphasized that the modern law firm needs to be current.

“Law firms have a duty to their employees to give them the best work environment and the best opportunities to provide the broadest range of legal services,” he said.

Latricia Shepard, chief talent and diversity officer at Spencer Fane, said for firms to have an effective DEI initiative, they must start with a foundation of core values.

“For our firm, workforce representation and core values encompass various levers and pillars, including people, client and community, with a focus on engagement, education, partnerships and business development,” she said.

Law firm DEI policies are not without challenges. In 2023, U.S. Sen. Tom Cotton, R-Ark., sent letters to 51 law firms following the SFFA decision, stating that firms may be violating federal civil rights law with DEI programs.

Rubenstein noted that a change in analysis may be necessary.

“Once you transform DEI from the unit of analysis being the individual to the unit of analysis being the organization, DEI blossoms,” he said, adding that DEI looks at “the whole organization” while affirmative action “only looks at the pipeline going into the company.”

Noting the “duty of a law firm” to grow DEI programs, Rubenstein said the future of firm-level DEI might be customer-driven.

“A client could say, ‘What’s your DEI program? If you don’t have a DEI program, I’m not hiring your law firm,’” Rubenstein said. “So, clients are going to be the official force on one hand.”

Despite the changes on the horizon, he said law firms should continue their DEI programs.

“Administrations change, and it would be very shortsighted for a law firm to kill its DEI program,” Rubenstein said. “Especially if clients are demanding and asking for it, and they are.”