Top affirmative action lawyer says companies rolling back DEI are ‘wimps’

“Why are companies caving? Because they’re wimps,” he said at the Fortune Impact Initiative Summit on Wednesday. 

Katyal, a partner at law firm Hogan Lovells and former U.S. Acting Solicitor General, has been involved in every affirmative-action case at the Supreme Court for the last 25 years. He went on to clarify that he doesn’t believe all businesses need to have a diversity program, but takes issue with employers who are using the affirmative-action ruling as an excuse for watering down their own programs.  

“What really offends me is companies that stand up and say, ‘Oh, we really want to do diversity and affirmative-action programs, but we can’t because of the law.’ That’s just, to use the technical legal term, poppycock,” he said. “The Supreme Court has not stopped DEI programs. There are ways to do them right and ways to do them wrong.”

The Supreme Court’s decision had an immediate effect on colleges and universities across the country, while sending a chill through the business world as companies wondered if their DEI programs risked legal scrutiny. Several prominent DEI retreaters changed their diversity programs this year, including Harley-Davidson, Lowe’s, John Deere, and Ford. 

Katyal then pointed to his legal work with Elizabeth Gore, the cofounder of Hello Alice, a company that helps small businesses grow. Earlier this year the organization came out victorious in an anti-DEI lawsuit that was filed against the company.

“You have people like Elizabeth’s company that’s not a multibillion-dollar-cap company. The legal expense alone is such a huge percentage of their annual spend, but they’re fighting to do the right thing,” he said. “For those of you who want to have the fight, there is a fight to be had, and there’s a way and a path to getting affirmative-action programs to be upheld by the Supreme Court.”