Prepared remarks: The Rule of Law versus the Rule of Intimidation: The Case for Diversity and Inclusion

Last year, we celebrated the 60th anniversary of the Civil Rights Act of 1964.  The law was passed almost two hundred years after the Declaration of Independence set out a promise of equality, and one hundred years after the Emancipation Proclamation freed enslaved Black people in the Confederate States.  The Civil Rights Act of 1964 renewed the pledge that our nation would not tolerate discrimination and was committed to equal opportunity for all.

As our nation continues to advance that vision, we would ideally engage in honest conversation and intentional action to continuously work towards making equal opportunity a reality. Unfortunately, we are now seeing a concerted effort to undermine this work and to suggest that the aims of the Civil Rights Act are illegal.  In my talk today, I will discuss this concerted effort to reject and roll back progress—an effort rooted in intimidation and animus—and how we are pushing back on it at the Colorado Attorney General’s Office.

I. Setting the Stage

When I graduated from law school, there were nearly as many women in graduating classes across the country as men.[1]  But less than 13% of law firm equity partners nationally were women.[2]  At that time, we looked forward to the day when barriers to women’s partnership would be removed and this gap would vastly decrease.  Today, that promise still has yet to be realized.  In fact, last year, as I celebrated my 30th year law school reunion, that number had only moved up to 26%.[3]

For a more promising and instructive case study in removing barriers to equal opportunity, consider the case of orchestra tryouts.  When musicians auditioned for top orchestra positions in view of the judges, only 5% of the musicians in the top five orchestras were women. But when selection practices changed so that auditioning musicians performed behind a curtain out of view of their reviewers, who as a result did not know the performer’s gender, women came to comprise 35% of all musicians selected for the top five orchestras.[4]

What these two examples demonstrate is the reality that to truly advance equality, we must be able to honestly identify and discuss when a person’s gender or race leads to less favorable treatment, and we should think about best practices for removing these barriers to equal opportunity.  In another example, take the case of Black women facing life-threatening complications while giving birth. Notably, studies have shown, the “pregnancy-related death rate for Black women” is three times the rate of white women and that 80% of those deaths were preventable.[5]

In the face of data revealed by case studies like these, we might naturally ask whether there are barriers to advancement for women at law firms, or in other jobs, that are unrelated to those women’s ability, whether Black women receive less favorable care and treatment during childbirth than other women, and what we can do to address such inequalities.  For organizations that aspire towards equal opportunity and care about developing a culture based on merit, introspection on such questions is both healthy and productive.  And that’s particularly appropriate given reports that 80% to 88% of white men report that they have access to career-enhancing assignments when only around 50% of women of color indicate that they have such access.[6]

The value of fairness and opportunity to succeed based on merit cannot coexist with established and often-unexamined patterns of favoritism that have nothing to do with merit. Take, for example, a story told by Colorado Chief Justice Monica Márquez from an experience on a judicial selection panel.  After an older male candidate with white hair left the room, one of the members of the selection panel remarked, “Now that man looks like a judge.”  Afterwards, Chief Justice Márquez later noted that she is a judge and looks quite different than the older gentleman.  Had she not been in the room to interrupt a statement coming from a place of unexamined assumptions about what a judge looks like, that image might have carried the day.

II. Undermining our Civil Rights Laws

I began this discussion by celebrating the 60th anniversary of the passage of Title VII of the Civil Rights Act of 1964,[7] which was enacted to end discrimination in employment based on race, color, national origin, sex, and religion.  One year later, in 1965, President Johnson adopted an Executive Order (EO 11246),[8] which required federal contractors of a certain size to combat illegal discrimination in the workforce.  Among other things, EO 11246 required such organizations to assess their outreach, recruitment, placement, and pay practices to identify barriers—unrelated to merit—to hiring and advancement based on race and sex.  For decades, the Civil Rights Act and Executive Order 11246 represented the federal government’s commitment to advancing equality and addressing discrimination.

Upon taking office in January, President Trump immediately issued an executive order that repealed EO 11246, which Presidents of both parties had enforced for almost sixty years, and ordered that all future contracts and grants must include terms by which the contractor or grant recipient certifies it is no longer carrying out DEI initiatives in violation of federal law.[9]  In the Executive Order, President Trump also threatened to withhold federal grant funding to organizations that carry out diversity and inclusion initiatives—such federal actions violate federal law.

President Trump’s executive order has spotlighted what it calls (but does not define or explain) “illegal DEI” and appears to target many efforts to identify and remove barriers—unrelated to merit—to hiring and promoting people of color and women.[10]   In so doing, he has launched what amounts to a government-sanctioned intimidation campaign that is tragically gaining powerful momentum.  In response to pressure campaigns and the latest executive order, many organizations—companies, non-profits, and governmental entities alike—are backing down from their prior diversity, equity, and inclusion commitments that seek to identify and remove barriers to hiring and promoting people of color and women.  As one author put it, “[w]ith much of the pressure coming from outside influences, directed at corporations’ shareholders and boards to make a change to [diversity and inclusion], the responses have been consistent: fold to the pressure.”[11]

A notable exception to the trend of ending diversity and inclusion programs is Costco, whose directors and shareholders recently (and overwhelmingly) rejected calls to end its such efforts.  In so doing, the Board stated that Costco’s “commitment to an enterprise rooted in respect and inclusion is appropriate and necessary.”[12]  Reacting to that statement, 19 Republican State Attorneys General wrote to the CEO of Costco, calling on the company to end the “unlawful discrimination imposed by the company through diversity, equity and inclusion (DEI) policies.”  To back up that statement, the AGs added “Costco’s position runs contrary to the Supreme Court’s recent decisions.”

The State AG letter, citing the Supreme Court’s Student for Fair Admissions case,[13] is misleading at best.  In the wake of that 2023 Supreme Court decision, the letter suggested that all diversity and inclusion efforts were illegal.  But any such suggestion takes a decision from one specific context—universities’ consideration of race as a factor when making admissions decisions—and uses it to assert that Title VII of the Civil Rights Act does not allow employers to take affirmative efforts to identify and remove barriers—unrelated to merit—to hiring and promoting people of color and women.  Organizations that seek to advance diverse and inclusive workplaces may continue to do so, as long as they don’t use quotas or otherwise deny opportunities based on protected characteristics such as race or gender—and that has long been the law.  To make that point explicit, I issued a legal opinion in the fall of 2023[14] and gave a speech that elaborated on it further, highlighting the powerful reasons that companies embrace diversity and inclusion as a business imperative.[15]

The Trump Administration is in the process of attempting to unravel constructive efforts to promote these long-embraced values in the federal government and beyond.  Take, for example, affinity or employee resource groups.  For many groups, say, women, LGBT individuals, Black professionals, or veterans, gathering with others from a shared background and supporters can make the overall environment a more inclusive one.  Many businesses have promoted such groups as a way to promote a greater sense of belonging.  That is certainly our attitude at the Colorado Department of Law, where we have such employee resource groups for individuals from and allies of communities ranging from Asian Americans to people living with a disability to military veterans to working parents.  Those groups are open to all employees regardless of their identity and protected class status—and they are lawful, appropriate, and have my full support.

Conversely, and in response to the intimidation campaign being waged by the Trump Administration, some institutions like United States Military Academy at West Point have banned such groups, even though they are legally permissible and were open to all cadets irrespective of identity.  Ending such groups at West Point is particularly problematic because while certain organizations—like the Japanese Forum Club—were banned, others—like the West Point Polish Club—were allowed to continue.[16]

Several military branches recently abandoned recruiting at a prestigious event honoring Black engineers, citing concerns that participation would violate the administration’s efforts to erase diversity efforts in the military.  A military recruiter criticized the decision and stated that “This is one of the most talent-dense events we do . . . [and we] need the talent.”[17]  And in an effort to erase recognitions of histories from certain backgrounds, the new Defense Secretary Pete Hegseth ordered that Black History Month, Women’s History Month, and other such commemorations could not be acknowledged at the Department of Defense.[18]

The steps being taken by the Trump Administration and by some Attorneys General are putting private employers in a bind.  Those who have adopted diversity and inclusion initiatives because they care about their workforces, want to find strategies to promote equal opportunity and avoid discrimination, and see diversity as a strategic advantage, are facing intimidation efforts from private actors, some State Attorneys General, and the federal government.  I applaud organizations like Costco, Ben & Jerry’s, Nike, Apple, Pinterest, and others that are standing their ground and recognize that promoting inclusion allows “companies to overcome the historic blind spots with [diverse] consumers when it comes to messaging, marketing and elevating their importance.”[19]

III.        Examine Your Progress

High functioning organizations learn lessons from data.  For law firms that are failing to elevate women or those from minority groups into partnership positions, it is important to ask why.  Those that do may learn, for example, that established networks promote individuals who resemble or relate most closely to yesterday’s leaders (who tend to be men) and so women and others are not receiving equal opportunities to advance.  Regardless of the explanation for such discrepancies, to not ask the question or to look away from reality and assume away any concern is irresponsible and disregards the documented challenge of a mentoring gap for women and those from minority groups.[20]

Asking questions about what works in practice—and what doesn’t work—enables leaders to identify what programs are most effective.  No leader should assume that all diversity and inclusion programs are effective or that all such programs are ineffective—and, in all events, it is important to always ask how programs can be improved.  Significantly, the fact that a particular program falls short is hardly the basis for scrapping all programs; rather, it is merely a reason to look for lessons from what can be learned from why a particular program did not work well.

The best approach to diversity and inclusion is one that stays focused on improving an organization’s meaningful commitment to equal opportunity and evaluates whether programs to do so are working.  Done properly, JP Morgan Chase CEO Jamie Dimon said, diversity and inclusion “is not corporate charity – is a business strategy’ that strengthens problem-solving, risk management, and long term innovation.”[21]  That’s why one commentator related that “[c]ompanies that invest in diverse workforces gain access to a broader range of perspectives, reduce blind spots in decision-making, and build more adaptive, forward-thinking teams.”[22]

The intimidation campaign attacking diversity and inclusion programs is not driven by any reasonable interpretation of Title VII.  It is not focused on addressing how to ensure that any such programs truly advance equal opportunity as opposed to deny equal opportunity in violation of the law.  Rather, the intimidation campaign appears to involve efforts to create division, stoke fear, and create less inclusive work environments.  This is not only misguided, but harmful and destructive to building effective 21st century workplaces and ensuring the promise of the Civil Rights Act is fulfilled.

It is important to ensure a meaningful process for evaluating the effectiveness of programs designed to provide for equal opportunity.  But such a goal provides no basis for ending all such programs.  Indeed, improving the overall workplace environment cannot explain what animates the Trump Administration’s takedown of DEI.  Rather, this effort is designed to undermine 60 years of progress towards civil rights for all.

* * *

The work that animates diversity and inclusion programs at the Department of Law is meaningful and important to our success as well as to our commitment to equal opportunity.  We are committed to equal opportunity for all and the creation of thriving, welcoming, safe, and supportive work environments. The programs we operate—and encourage others to adopt—are within settled law and constitute sound personnel practices that address barriers to advancement, innovations based on research, and experiments to foster more productive workplaces.

Both at our Department and elsewhere, we will continue to defend programs that advance equal opportunity as lawful and appropriate both in the court of law and the court of public opinion.  That’s because I continue to believe that, as Dr. Martin Luther King, Jr. famously put it, although the moral arc of our universe is long, it will bend towards justice.  I want to do all we can to make sure we are on the right side of the arc.  We all should.

 

[1] ABA Statistics Archives, available at https://www.americanbar.org/groups/legal_education/resources/statistics/statistics-archives/.

[2] Catalyst, Women in Law in the U.S. (2011), available at https://www.orrick.com/en/Insights/2011/09/Women-In-Law-In-The-US; National Association for Law Placement (NALP) Data, available at https://www.nalp.org/.

[3] Debra Cassens Weiss, These firms are ‘ceiling smashers’ for having highest percentage of women in equity partnerships, ABA Journal (Aug. 22, 2024), available at https://www.abajournal.com/news/article/these-law-firms-are-ceiling-smashers-for-having-the-most-women-in-equity-partnerships.

[4] Kenji Yoshino & David Glasgow, What SCOTUS’s Affirmative Action Decision Means for Corporate DEI, Harvard Business Review (July 12, 2023), available at https://hbr.org/2023/07/what-scotuss-affirmative-action-decision-means-for-corporate-dei.

[5] Maya Goldman, Black maternal health efforts face unclear future under Trump, Axios (Feb. 13, 2025), available at https://www.axios.com/2025/02/13/black-mothers-health-mortality-rate-trump.

[6] Joan C. Williams, No, SCOTUS Did Not Make Your Company’s DEI Programs Illegal, Harvard Business Review (Aug. 29, 2023), available at https://hbr.org/2023/08/no-scotus-did-not-make-your-companys-dei-programs-illegal.

[7] Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.

[8] Exec. Order No. 11246, 30 FR 12319, 12935, 3 C.F.R. (1964-1965).

[9] Exec. Order No. 14173, 90 FR 8633 (January 21, 2025).

[10] Notably, the Executive Order, entitled “Ending Discrimination and Restoring Merit-Based Opportunity,” called out DEI efforts as “dangerous, demeaning, and immoral.”  It stated that such efforts “violate the text and spirit of our longstanding Federal civil-rights laws” and that they “undermine our national unity, as they deny, discredit, and undermine the traditional American values of hard work, excellence, and individual achievement in favor of an unlawful, corrosive and pernicious identity-based spoils system.”

[11] Doug Melville, Costco Doubled Down On DEI, Then 19 Attorneys General Warned Them To Stop, Forbes (Jan. 29, 2025), available at https://www.forbes.com/sites/dougmelville/2025/01/29/costco-double-downed-on-dei-then-19-attorneys-general-warned-them-to-stop/.

[12] Id.

[13] Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023).

[14] Press Release, Colorado Department of Law, Attorney General Legal Opinion: Diversity, equity and inclusion efforts remain legal under federal law (Oct. 4, 2023), available at https://coag.gov/press-releases/legal-opinion-dei-efforts-legal-under-federal-law-10-4-23/.

[15] Prepared remarks: Talk to the National Organization of Lawyers for Education Associations (Oct. 5, 2023), available at http://coag.gov/blog-post/remarks-talk-national-organization-lawyers-education-associations-10-5-2323/.

[16] Miranda Jeyaretnam, West Point Disbands Cadet Clubs Following Trump’s Anti-DEI Order, Time (Feb. 5, 2025), available at https://time.com/7212911/west-point-disbands-cadet-clubs-affinity-groups-trump-dei-order/.

[17] Steve Beynon, Military Drops Recruiting Efforts at Prestigious Black Engineering Awards Event, Military.com (Feb. 10, 2025), available at https://www.military.com/daily-news/2025/02/10/military-drops-recruiting-efforts-prestigious-black-engineering-awards-event.html.

[18] Id.

[19] Melville, supra note 11.

[20] For a discussion of the mentoring gap phenomenon, see Katy Marquart Hill, Female Entrepreneurs Face Hidden Barriers in Mentorship Networks, CU Boulder Today (February 20, 2025), available at   https://www.colorado.edu/today/2025/02/20/female-entrepreneurs-face-hidden-barriers-mentorship-networks

[21] Nairy McMahon, DEI Is In the Firing Line – But At What Cost, Entrepreneur (Feb 7, 2025), available at https://www.entrepreneur.com/en-gb/leadership/dei-is-in-the-firing-line-but-at-what-cost/486687#:~:text=As%20AI%20reshapes%20the%20workplace,in%20a%20rapidly%20evolving%20economy.

[22] Id.