Academic expertise can clarify the law where political rhetoric creates confusion.
Professor Stephanie Bornstein
LMU Loyola Law School
Recent political actions targeting so-called “illegal DEI” have sewn confusion about the scope of antidiscrimination law and what employers must and can do to ensure compliance. In response, Professor Stephanie Bornstein of LMU Loyola Law School reached out to a team of employment law scholars to launch The Legal DEI Project—a new, comprehensive FAQ providing objective information about antidiscrimination law. Its central message: DEI is not illegal; discrimination is.
Prof. Bornstein was motivated to form the Legal DEI Project to prevent employers from overreacting to executive orders and other policy declarations from the Trump administration, many of which do not apply to private employers. The Project cautions that employers who act rashly to suspend efforts to promote diverse and inclusive workplaces may, counter-intuitively, increase their risk of legal liability. This is because many practices that fall under the “DEI” umbrella are both lawful and helpful in ensuring fair, nondiscriminatory workplaces. And, on balance, employers are still far more likely to be sued by individual plaintiffs from historically excluded groups than to be investigated by the government.
Prof. Bornstein hopes the Project will protect equality and fairness at work by redirecting employers to the central mission of antidiscrimination law as expressed in the relevant legislation and long-standing precedents. She sees academics as providing an added value in times when straight-forward information is in short supply. Employers and their counsel are naturally risk averse, but as Bornstein explains, “As academics, we can provide an informed, historically-based perspective on what the law actually says” at a time when political rhetoric and pressure has muddied the waters.
The Legal DEI Project team includes, along with Professor Bornstein, Rachel Arnow-Richman (University of Florida Levin College of Law), Tristin Green (LMU Loyola Law School), and Deborah Widiss (Indiana University Maurer School of Law).