Culture & DEI: Strategy, Litigation & Investigations

The conversation around diversity, equity, and inclusion (DEI) strategies, programs, and policies is evolving, both in the United States and around the globe. Organizations continue to assess demands for more inclusive practices while preparing themselves for potential challenges to their DEI practices and commitments more broadly.

Our culture and DEI strategy, litigation, and investigations practice—encompassing lawyers from our labor and employment, crisis management, appellate, tax-exempt organizations, government investigations, and ESG and sustainability advisory practices—provides customized counsel on DEI considerations and objectives and handles disputes when they arise. In the wake of Students for Fair Admissions Inc. v. University of North Carolina and Students for Fair Admissions Inc. v. President & Fellows of Harvard College, global employers, Fortune 100 companies, philanthropic foundations, and their boards of directors, turn to Morgan Lewis to help balance their concerns and move forward to pursue their DEI objectives.

We advise on the full spectrum of employment-related practices such as recruiting, hiring, retention, pay equity, and promotion. Our lawyers also advise organizations on their other diversity-related activities, as they enter into contracts with third-party suppliers and other vendors, consider corporate philanthropy and grantmaking, and develop financial investment strategies.

In addition, we counsel on and defend our clients’ DEI programs. We represent our clients in Title VII and Section 1981 lawsuits challenging their DEI and racial equity programs in state and federal trial and appellate courts, whether they arise in employment litigation, shareholder derivative suits, or otherwise.

When complaints arise, whether internally or in the media, we investigate allegations of discrimination, harassment, retaliation, bullying, and other alleged misconduct and propose remedial solutions where warranted.

Our organizational culture practice assists employers, universities, and boards of directors in creating inclusive organizations that nurture a culture of belonging. For more systemic issues, we conduct in-depth qualitative and quantitative culture assessments utilizing focus groups, individual interviews, and targeted surveys. Our team offers training on a host of organizational issues, including creating respectful workplaces. We develop concrete and customized solutions to create inclusive organizations, mitigate the possibility of litigation, and preserve reputation and brand.

HOW WE CAN HELP

As part of our DEI strategy, litigation, and investigations practice, our trusted advisers handle a wide array of matters involving DEI, whether organizations seek a proactive approach or responsive solutions:

  • DEI Audits: Inventory existing DEI programs and practices across the organization (including employment practices, supplier and third-party vendor contracts, corporate philanthropy and grantmaking, and financial investment strategies); assess the possible risk arising out of anticipated challenges; and identify a range of mitigation options
  • Pay Equity: Conduct privileged pay equity audits to assess legal risk and to inform reporting and disclosure strategies
  • Demographic Data Analyses: Conduct privileged analyses of demographic data to assess aspirational representation goals—and ensure they are realistic and achievable and comply with nondiscrimination laws—and to ascertain risk arising under current employment practices (e.g., hiring, promotion, and retention)
  • Corporate Governance: Create corporate governance and reporting structures, review public company disclosures, and advise C-suite executives and boards of directors
  • Crisis Management and Communications: Review internal and external messaging and communications about DEI programs and strategies to assess potential risk, educate decisionmakers about risk areas for domestic and global operations, and align practices and/or messaging as appropriate
  • Litigation: At the trial and appellate levels, defend against legal challenges to DEI programs, including challenges under Section 1981, individual and systemic employment claims, shareholder derivate and breach of fiduciary duty claims, and class action lawsuits
  • Investigations: Investigate allegations of discrimination, harassment, retaliation, bullying, and other alleged misconduct and present investigative findings regarding those allegations; conduct independent investigations of allegations on behalf of companies or special committees as appointed by boards of directors; and leverage investigation results to inform broader DEI and workplace culture efforts
  • Culture Assessments: Conduct in-depth qualitative and quantitative culture assessments utilizing focus groups, individual interviews, targeted surveys; present findings to senior leadership; and provide responsive recommendations, including policy revisions, customized training, and communication strategies
  • Training: Develop programs geared to employees, managers, executives, and board members to assist in avoiding undesirable behavior and to address missteps