Divergences on Diversity: Setbacks to Inclusion and Innovation
*Originally published in JOTA.
**This is an AI-powered machine translation of the original text in Portuguese.
The recent initiative by Andrea Lucas, interim chair of the U.S. Equal Employment Opportunity Commission (EEOC),[1] who sent letters to 20 law firms requesting information on their diversity, equity, and inclusion (DEI) practices, reflects an American context of growing challenges to programs aimed at promoting racial and gender equality.
These challenges are based on the mistaken and unfounded allegation that such policies could create illegal differential treatment based on protected characteristics—such as race, gender, or sexual orientation—in possible violation of Title VII of the Civil Rights Act of 1964.[2]
In the United States, there is an escalating movement opposing DEI initiatives, intensified by the current U.S. president issuing executive orders aimed at curbing diversity training and programs within federal government agencies and contracted companies. Although initially blocked by injunctions in lower courts, a federal appeals court in Virginia[3] partially reversed these decisions, allowing restrictive measures to resume.
Simultaneously, major U.S. companies have reconsidered or even discontinued diversity promotion practices due to fears of financial sanctions or political pressures accusing such programs of promoting “reverse discrimination,”[4] thus ignoring the inherent nuance in the debate.
In Brazil, however, the prevailing understanding is that affirmative actions are a legitimate and desirable tool to correct historical inequalities, ensure effective access to the labor market, and guarantee the representation of marginalized groups.
This perspective finds support, for instance, in the actions of the Labor Public Prosecutor’s Office (Ministério Público do Trabalho - MPT),[5] which encourages hiring and promotion policies aimed at underrepresented groups. Thus, adopting racial or gender quotas in selection processes aims to ensure the effectiveness of the constitutional precept of reducing social inequalities (Article 3, III, of the 1988 Constitution). This understanding is reinforced by jurisprudence from the Brazilian Supreme Court (Supremo Tribunal Federal - STF).
In 2012, in ruling on the Fundamental Precept Non-compliance Claim (Arguição de Descumprimento de Preceito Fundamental - ADPF 186), the STF declared the constitutionality of racial quotas in public universities. The unanimous decision emphasized that, far from violating the principle of equality, racial quotas concretized the fundamental goal of building a free, fair, and supportive society by reducing opportunity disparities.
In 2024, the STF extended the validity of the Quotas Law (Law 12.990/2014) in federal public competitions until new legislation is approved by the National Congress, reinforcing the legitimacy of affirmative actions for underrepresented groups and the importance of maintaining policies aimed at correcting inequalities.
The core of discussions on the legitimacy of DEI initiatives and affirmative actions lies in interpreting the principle of equality and the concept of discrimination. The equality principle has two dimensions: formal equality (everyone is equal before the law) and substantive equality (acknowledging historical inequalities and adopting concrete measures to address them), which are complementary dimensions of the equality principle.
Discriminatory treatment occurs when unjustified differentiation between individuals or groups happens without objective and reasonable grounds,[6] perpetuating prejudices or arbitrary inequalities. This understanding aligns with historical precedents in the U.S., such as Moritz v. Commissioner, which recognized discrimination against a single man denied a tax benefit granted to women caring for their parents. Although this case is not strictly about affirmative action, it exemplifies what constitutes unlawful or unfounded distinction.
The EEOC’s position, seeking information on DEI practices from law firms, signals an approach based on a more restrictive interpretation of the equality principle—in which any consideration of protected characteristics, even aiming to reduce historical disparities, could be viewed as discrimination. This perspective often deliberately confuses initiatives meant to correct structural inequalities with the discrimination those initiatives aim to combat.
If this trend gains strength, concerns arise about a "chilling effect" on companies and organizations seeking to implement or expand their inclusion programs. Ultimately, this could result in setbacks in promoting workplace diversity, nullifying significant advances in ensuring equitable opportunities for historically marginalized groups.
Beyond inclusion, resistance to diversity programs also affects the creation of innovative environments. Studies demonstrate[7] that diverse teams often perform better due to the plurality of perspectives and experiences they bring to institutions.
The scenario of contestations against DEI practices in the United States—driven by EEOC investigations and presidential executive orders—contrasts with the majority understanding in Brazil and may generate a "chilling effect" on inclusion programs.
Despite growing evidence that DEI policies benefit underrepresented groups and strengthen innovation and organizational performance, this factor appears disregarded in recent American positions.
Thus, the debate on the legitimacy of these initiatives involves (or should involve), simultaneously, interpreting the principle of equality and fostering more productive (as well as equitable and diverse) workplace environments—fundamental elements for any country's social and economic development.
[1] Home | U.S. Equal Employment Opportunity Commission
[2] Title VII of the Civil Rights Act of 1964 | U.S. Equal Employment Opportunity Commission
[3] Trump tem vitória judicial em guerra contra diversidade e inclusão
[5] Ministério Público do Trabalho
[6] Atala Riffo y Niñas v Chile SECCIÓN A: DATOS DEL CASO
