It’s time corporate attorneys shifted from defense to offense on DEI
Corporate America is under attack, but not in the way some executives and legal teams seem to think. The assault on Diversity, Equity, and Inclusion initiatives isn’t rooted in law — it’s a political strategy. A strategy many companies (like Salesforce, Inc, Victoria’s Secret & Co. and State Street Corp. recently) are folding under without a long-term view of the repercussions.
The forces opposing workplace diversity efforts are not bound by legal precedent, consistency, or even logic. They are waging a war of perception, leveraging fear, disinformation, and political pressure to push corporations into surrender.
At the same time some corporations are getting bad advice bordering on malpractice from their legal counsel. As a consultant I have heard shocking statements such as “affirmative action doesn’t exist any more” and “you can’t recruit at HBCU’s any more."
Attorneys advising these corporations need to recognize what’s happening: This is not business as usual. The response cannot be hysterical misinterpretations of the law or passive compliance or unnecessary retreat.
The panic surrounding corporate DEI programs is built on a lie. Opponents want companies to believe that these programs are now legally indefensible, but the reality is that DEI efforts remain fully lawful under existing employment laws, including Title VII of the Civil Rights Act.
The Supreme Court’s decision on affirmative action in college admissions did not outlaw DEI in employment. A federal court has already blocked attempts by the Trump administration to ban DEI programs in government agencies, educational institutions and the private sector. “The court held that the Executive Orders impermissibly target the expression of views supportive of equity, diversity and inclusion and violates the First and Fifth Amendments of the United States Constitution. The federal court noted that the Executive Orders are in fact antithetical to federal anti-discrimination law.” If corporations voluntarily fold on DEI despite having legal protection, what will be next?
Corporate lawyers cannot afford to play defense. The opponents of DEI are not operating in good faith; they are engaged in "asymmetrical warfare" and corporations should not be pretending it’s a routine policy debate, they must get just as “creative.” The best example of how corporate legal teams can fight back is the Supreme Court’s own ruling in Citizens United v. FEC.
It can be argued that Citizens United handed corporations the same First Amendment protections as individuals, granting them the ability to engage in political speech, advocate for policies and shape workplace culture without government interference. If the right to corporate speech extends to political donations and lobbying, then it certainly applies to a company’s commitment to fostering an inclusive workforce. It is time for corporations to stop playing by the opposition’s rules and start using their own legal arsenal to defend their values.
Rather than cower in the face of political rhetoric, corporate lawyers should be actively defending DEI as both a business necessity and a matter of free speech. Companies have just as much right to declare that diversity is a corporate value as they do to engage in marketing campaigns or political donations.
If companies continue to cave to political pressure despite having the law on their side, they are setting a disastrous precedent. The anti-DEI movement is not rooted in law; it is a coordinated political attack designed to create compliance through fear. Every retreat emboldens opponents to push further.
Executives and their legal teams need to ask themselves: Do we want to be the generation of corporate leaders that allowed the erosion of workplace inclusion out of fear? Or do we want to be the leaders who recognized the game being played and refused to fold?
The companies that withstand this attack on workplace inclusion will be the ones that recognize it for what it is: a political strategy, not a legal reckoning. Corporate leaders need to stop treating DEI as a compliance issue and start treating it as a business imperative. Diversity isn’t about politics — it’s about performance, innovation and global competitiveness. Those who abandon DEI efforts are making a decision not just about their workforce, but about the future viability of their companies in an increasingly diverse market.
And when corporations do take a stand, they must be prepared to defend it — not just in press statements, but in courtrooms. If lawmakers or activist groups attempt to bully companies into abandoning DEI under the guise of legal risk, those companies should challenge those efforts with the same force they would use to protect any other core business function.
Because here’s the truth — companies that panic and dismantle DEI today will spend the next decade trying to rebuild their reputations, recover lost talent and repair the damage. Those that hold their ground will emerge stronger, more competitive and on the right side of history. The choice is theirs.
The battle over DEI is not about legality — it is about who will stand firm in the face of political intimidation. The law is still on the side of workplace inclusion, but if corporations voluntarily surrender, they risk losing far more than just their DEI programs.
Corporate attorneys, it’s time to stop playing defense. The opposition is waging a full-scale attack on workplace inclusion. It’s time to fight back.
Shari Dunn, a former practicing attorney, professor, and nonprofit executive, is a consultant focusing on systemic equity, diversity, and inclusion. She is the author of the book "Qualified: How Competency Checking and Race Collide at Work" (Harper Business).
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