Diversity heads and corporate attorneys clash over DEI legal risks

Diversity in the workplace is generally seen as a positive attribute, contributing to innovation, creativity, and overall organizational success. However, some legal risks have general counsels on high alert and, at times, create division between chief diversity officers and chief legal officers.

Despite some highly vocal backlash, most CEOs and diversity officers say their companies have not pulled back on their prioritization of DEI. Still, they cite concerns over legal liability and increased collaboration with and oversight from their general counsels.

Today's corporate attorneys are increasingly involved in the creation and implementation of DEI initiatives, and they're dissuading diversity practitioners from what they consider to be thornier and more legally fraught programs, such as diversity-based incentives like bonuses based on representation targets, fellowships for specific demographics, or performance reviews that include criteria related to DEI performance and results.

According to a survey from Littler, organizations are reverting to more straightforward initiatives such as implicit bias training and other educational resources, which, while they can be useful, are not always as effective in driving immediate and patent progress.

In this context, CDOs and legal officers have competing priorities. The role of the general counsel is to manage risk, ensure compliance with laws and regulations, and protect the company from potential litigation. Chief diversity officers, on the other hand, are largely focused on implementing and championing efforts that attract, retain, and tangibly advance diverse talent. While their respective directives aren't mutually exclusive—and compliance is a key facet of the CDO role—chief legal officers are likelier to err on the side of caution, potentially hampering diversity heads' ability to effect change—and do so swiftly.

The same Littler survey underscores this disconnect. CDOs and CLOs often offer differing takes on their company's diversity efforts, highlighting how their perspectives and goals for DEI have diverged in this new political landscape. For instance, 57% of CDOs say their organization is defining metrics for DEI progress, while just 19% of CLOs say the same.

In yet another gap, 89% of diversity heads say their organization's DEI plans and goals are clear, while 69% of corporate lawyers agree their company has well-defined DEI strategies.

Such misalignment could be deleterious to the organization and both sets of executives. Legal officers without full visibility into a company's DEI efforts maintain a blind spot that could result in a litigious outcome, especially in states that have passed stronger anti-DEI laws, according to Littler. Conversely, when legal heads don't fully understand what a diversity initiative or program is meant to achieve, they could thwart those efforts and, ultimately, diversity officers' ability to be successful in their role.

It's critical that the two factions, perhaps now more than ever, are in agreement not only on their DEI principles but also on how the company puts them into practice.

Ruth Umoh
@ruthumohnews
ruth.umoh@fortune.com

This story was originally featured on Fortune.com