How Kenji Yoshino is Advising HR Leaders on Moving Forward with DEI

To say DEI in corporate America is under stress would be an understatement. Perhaps no one knows this better than Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law and faculty director of the Meltzer Center for Diversity, Inclusion and Belonging. In his role leading the Center, Yoshino has remained on the forefront of the latest research related to DEI and the law, and its effect on the modern workplace.  

Yoshino will join the i4cp 2025 Next Practices Now Conference in Scottsdale, Arizona (March 3-6, 2025) to discuss advancing DEI in a time of legal backlash. He recently spoke with i4cp about the current state of DEI in corporate America and how leaders should think about legal risk following recent Supreme Court decisions.  

This interview has been edited for length and clarity.  

How do you describe the current DEI landscape? 

I'm a constitutional law professor and I lead the Meltzer Center for Diversity, Inclusion, and Belonging at NYU School of Law, so my two worlds have been colliding ever since the Students for Fair Admissions (SFFA) v. Harvard case.  

I used to think of the law as the floor that gave us minimal protections, and DEI as the culture that was built above that floor to make sure our day-to-day lives were dignified and inclusive. But now the law is functioning less as a floor and more like a ceiling that's being dropped on top of the entire enterprise.  

So, as the director of one of the few centers—if not the only center— for DEI that operates out of a law school, we really feel like our job is to raise legal literacy around DEI issues as much as possible. The big shift occurred with the SFFA case, where the Supreme Court abolished affirmative action in June of 2023, but the time since then has been equally tumultuous, and there are lots of developments that we need to keep up with.  

How has the SFFA case altered the way you advise leaders to think about DEI? 

I would say that the case itself communicated that we need to be careful about what we call the ‘three Ps of DEI’—so be careful when you're exhibiting a preference for a protected group with regard to a palpable benefit. To be [considered] legally risky, you must hit all three of those elements.  

If there's no preference—for example, you're doing unconscious bias training to remove all bias—that's fine. If the group isn't protected—like it's about first-generation students—you're also totally fine. And then if it's not a palpable benefit—for example, it doesn't rise to the level of something that would be an adverse employment action, like you're just having happy hour with people for Pride within the LGBTQIA+ community—that's probably not going to result in litigation. You have to hit those three Ps. 

With that said, what DEI programs do you see most at risk that companies might choose to stay away from? 

I want to be clear, because I often hear that people are leaning out of these programs, but we like to think of it less as a cut and more as a shift in thinking while keeping the same commitment. 

One of the most common things that we see is people saying any kind of targeted program is legally risky. A good example would be something like the fellowships that law firms offered that said in order to have said fellowship, you have to be a person of color—that is risky.  

But firms didn't jettison these programs altogether. They shifted them to say anyone can apply for the fellowships, but it's going to be thematized around the advancement of diversity and inclusion. You can apply for this no matter who you are, but you need to have shown a commitment to advancing diversity and inclusion. In our terminology, this shifted from cohorts to content. 

Can you share more about what this means? 

Cohorts are limited to a particular cohort of individuals, like if only people of color could apply. Content is anyone can apply, but the content of the fellowship is still thematized around the advancement of people of color. That [distinction] took care of the legal issues. 

So maybe now instead of having an affinity group that's closed, you say it’s an affinity group for Black individuals, or Asian individuals, or LGBTQIA+ individuals, and allies are welcome. Also, a retreat or development program that historically would have been only for women to close gaps in gender representation now can't only be for women. You have to allow men to go to that program as well, but it can still be thematized around the advancement of women. 

Who is it more important than ever that DEI leaders are partnering with inside of their organizations? What teams need to come together to make sure programs are secure and thrive? 

Three constituencies need to come together: Chief Diversity Officers/CHROs, the general counsel's office, and the CEO. It's like a triangle. 

Not to sound like too much of a Pollyanna about this, but I think one of the positive things that's comes out of this is that previously CEOs and general counsels would often say, ‘Okay, it's a diversity issue. You go deal with it over there, and we don't have to touch that.’ And the whole reason that we set up this different vertical is that we wouldn't have to think about it or deal with it. Now, because of the lawsuits, of course, the general counsel must get involved because it's a potentially significant risk for the entire enterprise, and for that same reason, CEOs need to get involved as well. 

I've talked to a lot of diversity officers who said the downside is they used to be much more autonomous and now everyone needs to have an opinion and clear everything with everybody. But the positive side of that is that the general counsel and CEOs are much more aware of everything that's going on, and to the extent that they are supportive, it actually amplifies air cover and resources that they have to advance diversity. 

What do you predict will be a major focus in 2025 as it relates to DEI? 

I think that at least three things will happen. First, I think organizations are going to have to think deeply about ‘Stealth DEI.’ In other words, saying they're going to do exactly the same thing, but it may be that they won’t be as vocal or visible about it. They might choose not to put it on their website or talk about it in their speeches because they don't want to paint a target on their chest. Even if there's no legal risk there's a lot of social risk, so managing that is one thing that is going to go on. So stealth DEI is going to be on the rise. 

Second, I think that ‘Loud DEI’ ironically is also going to be on the rise. Certain organizations and people who occupy a different lane or are less worried about getting sued for a variety of reasons are going to have to be louder about DEI to make the affirmative case. What I mean by the affirmative case is that [advocates for DEI] spend a lot of time on the back foot, in part, because it's not a media story to say, ‘I stuck to my guns with regard to DEI.’ The media story is that an organization got sued and then changed what they were doing. So those stories get splashed across the headlines.  

We hear a lot about Ford or Lowe's backing away from their DEI commitments, but we don't hear a lot about the organizations—which are the vast majority of organizations—that are staying true to the cause. I think those organizations are going to need to start being louder, not necessarily in what they are doing, but in making the affirmative case for why DEI is so important and making the business case for diversity. 

Third, which is related to both, is ‘Long DEI,’ as in thinking about the long game. It's not enough to simply engage with what the Supreme Court has said on DEI, we have to look at the broader trend line, which in part, is a demographic story. By 2042 we're going to be a majority minority nation. That's already true in the under-18 cohort within the United States. Since 2019 the majority of college educated workers have been women, and that survived even the effects of the Great Resignation during COVID and its disparate impacts on women.  

If the world is that diverse, how can you possibly hope to manage someone or even just be somebody's colleague without learning and knowing how to talk across these demographic divides? 

 

Join Kenji Yoshino at i4cp’s Next Practices Now Conference

Don’t miss the opportunity to hear Kenji Yoshino share additional insights on inclusion, authenticity, and leadership at i4cp’s Next Practices Now Conference. Join this exclusive community of HR leaders March 3–6, 2025 in Scottsdale, or virtually, to gain actionable strategies and drive real-world impact. Visit i4cp.com/conference to learn more.