The legality of corporate diversity, equity, and inclusion initiatives could come down to the difference between "race-conscious" and "race-based" decision-making, according to federal employment law enforcers.

In the wake of the Supreme Court's decision to outlaw affirmative action in college admissions this summer, employers are reassessing their hiring practices based on DEI ideology and whether those could be considered discriminatory by the current court and the Equal Employment Opportunity Commission.

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EEOC Vice Chairwoman Jocelyn Samuels, a Democrat, and Commissioner Andrea Lucas, a Republican, debated the topic at a discussion at the National Press Club hosted by the Federalist Society on Tuesday evening.

Samuels and Lucas, both appointees of former President Donald Trump, agreed that the decisions in Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard, for now, are applicable to the education space only. But both seemed to think the current court could be positioned to rule similarly on DEI-oriented corporate decision-making, including hiring and recruiting to affect the employment racial makeup.

Neither commissioner spoke for the EEOC, and the commission has not made a determination on DEI since the Supreme Court cases, but Lucas took a decidedly skeptical position on corporate motives for DEI goals for hiring, noting that many companies set goals to increase their environmental, social, and governance, or ESG, scores.

"Humans who trend towards evil work at companies which trend towards evil. I just don't believe that, on the whole, companies are out there looking for this kumbaya," Lucas said. "I think that they want to do what's going to make them money and what's going to decrease their public relations nightmare."

"People are going to pick a fast and easy and lazy route, and what is fast and easy and lazy? Just picking people based on their race or their sex to hit a goal so that you get more money," she added, noting organizations create diversity indexes to rank companies, which, in turn, can affect lines of credit, banking, and other financial considerations tied to ESG scores.

Corporate America came to a "single conclusion" that the only "right answer ... to societal or so-called 'systemic racism'" was to engage in policies that "benefit only a very specific and limited group, racial or ethnic group," Lucas said, adding that true diversity should be based on the person and includes non-race- or gender-related aspects such as viewpoints.

Samuels, who was appointed to the EEOC for a second term by President Joe Biden, sees the initiatives as more of a "check" that provides a litmus test to employers to make sure their hiring practices are not already discriminatory, adding, "We are still seeing the continuing repercussions of race discrimination, historical and current, in the workplace, the levels of underrepresentation pay disparities."

She is concerned the latest Supreme Court affirmative action decisions will drive employers away from DEI hiring practices because they will deem it "too legally risky."

"I think it is a way for employers to keep themselves out of trouble for being sued for straightforward invidious discrimination because it enables them to identify practices that are erecting barriers," Samuels said, though she noted there is a "spectrum of risk" for employers who use the ideology and how overt they are in attaching recruiting and hiring to racial outcomes.

In Samuels's view, if the logic of the higher education cases were extended to DEI initiatives, they would be permissible because affirmative action is "race-based" and overtly used in decision-making, whereas DEI is "race-conscious" and simply takes it into account aspirationally, not in "individual employment decisions."

That difference is similar to the one drawn between demographic "goals" set for hiring and recruiting, which she said are "aspirational" and "not mandatory," and "quotas," which are illegal because they are "fixed metrics that are mandatory."

Lucas said most critics of DEI are less concerned with the "diversity" and "inclusion" aspects but are worried about "equity," which is outcomes-driven, not opportunity-driven.

"They'll have a whole report on it, and they're never calling it affirmative action. If they called it affirmative action, they'd be honest," she said, pointing out that DEI is a way for corporations to pad ESG scores and highlight a public-facing orientation toward racial justice, which earns them higher scores from the tracking indexes.

She also believes the corporate pursuit of DEI was a decision based on the former legality of affirmative action in college admissions, a "stamp of approval" that was patched over to employment law. "The reality is that that's never been the case in employment law," she noted.

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Conservatives need to make the "moral case for equality" over equity to make up ground on the DEI matter, Lucas said, citing essays written by now-Justice Clarence Thomas when he was the chairman of the EEOC about civil rights as a principle versus civil rights as an interest.

"Conservatives fail not because we lack commitment to equal justice under the law, but because we do not present our case for civil rights, the highest possible claim," Lucas said.