Legal professionals see a possible DEI revival despite backlash

By Grace Kim

Earlier this year, The Conference Board found that 63% of U.S. worker respondents would not, or would only reluctantly, work for a company that did not take diversity, equity and inclusion seriously.

Stacy Hawkins, a Rutgers University law professor, used the finding in remarks at the American Bar Association’s labor and employment section conference on Thursday. She argued that employers should not mistake the backlash against DEI for a passing trend. The Conference Board finding, as Hawkins presented it, did not include a sample size or note any revision.

The finding applies to U.S. worker respondents; Hawkins provided no sector- or occupation-level breakdown.

Why do these speakers see a possible revival?

Hawkins traced DEI’s constituent parts to the broader U.S. civil-rights movement. She said the decades that followed brought recurring backlash, including opposition to affirmative-action policies, while work on DEI’s components continued.

“This is not a new story,” Hawkins said. “We’ve been here a long time.”

Her case for a revival also rests on demographics. The 2020 U.S. Census found that more than half of Americans age 18 or under identified wholly or in part with nonwhite racial or ethnic groups.

For an individual candidate, that shift means DEI policy operates within a changing workforce rather than a temporary corporate experiment.

Takeaway: DEI’s legal and demographic foundations extend beyond the current political cycle.

What do worker preferences mean for jobs?

Hawkins linked that history to employers’ retention problem. She cited estimates placing average turnover at more than $45,000 per employee, but did not identify who produced that estimate. Her point was that the 63% worker finding and the cost of replacing leavers add up for employers.

For an individual candidate, the finding makes a company’s DEI posture part of deciding whether to accept an offer; it does not establish that a particular employer will hire or retain more people.

For an individual employee, the turnover estimate makes retention economics relevant to workplace policy, even though $45,000 is an estimate rather than a company-specific bill.

Takeaway: Employers can lose prospective workers over DEI, while some estimates put the cost of turnover above $45,000 per employee.

What has the law actually changed?

Charlotte Burrows, a former chair of the U.S. Equal Employment Opportunity Commission, said in a separate session that federal antidiscrimination law has not changed, even as the EEOC has pursued a broader anti-DEI shift. Employment-discrimination claims can still produce costly payouts for employers.

Her advice was to distinguish DEI from affirmative action. Affirmative action has faced scrutiny from entities including the Supreme Court in recent years; DEI, by contrast, has no formal legal definition and has not been expressly outlawed.

Roya Vasseghi, founder of Vasseghi Law Group and Burrows’s co-presenter, said employers should track how the administration targets what it defines as illegal DEI discrimination. The EEOC has previously said such cases may involve quotas, balancing workforces by protected characteristics and other actions.

“DEI programs don’t need to go away,” Vasseghi said. “They just need to be looked at to ensure you’re not exposing the company to the risks identified in these cases.”

Takeaway: DEI has not been outlawed wholesale, but employer programs still require legal review against antidiscrimination rules.

What happens as federal enforcement retreats?

State-level regulators may fill what Burrows called the current federal “enforcement gap”; many are “eager to step into” it, she said. State governments have also enacted disparate-impact provisions while the Trump administration has rejected the concept.

For workers and employers, the relevant legal environment can now differ by state. An individual job seeker can therefore face different enforcement expectations from one labor market to another, while a company must monitor rules beyond the federal level.

Takeaway: A weaker federal anti-DEI position does not remove state-level enforcement or discrimination risk.

The coming test is whether state enforcement and discrimination claims replace federal pressure as the main drivers of employer decisions.