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The Shifting Landscape of DEI Disclosures in Public Companies: A Libertarian Perspective
Recent years have seen a frenetic discourse around diversity, equity, and inclusion (DEI) in corporate America—and now this conversation finds itself at a crossroads. With former President Trump’s executive orders aimed at curtailing certain DEI programs, most notably the one aptly named “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (Executive Order 14173), publicly traded companies are wrestling with how to present their DEI-related disclosures in a radically different climate. While the enforcement of these measures may have hit a temporary snag—much like that last slice of pizza at a party, it’s tantalizing yet elusive—companies are already making changes as they prepare their Form 10-K Annual Reports for the fiscal year ending December 31, 2024.
One would think “diversity” is a buzzword that’s here to stay, like your Aunt Mildred at Thanksgiving dinner, but more and more companies are seriously reconsidering its spot on their corporate roster. Companies are asking important questions: Should they include DEI disclosures? How comprehensive should these disclosures be? Which phrases strike the perfect balance between commitment and avoidance of potential federal litigious antics?
The Private Sector: Tightening the Lens on DEI
While legal challenges loom ominously over Executive Order 14173, including a rather entertaining game of legal hopscotch brought on by its injunctions, it’s critical to understand its implications for the private sector. This order has the Attorney General kicking off investigations into key sectors under their oversight, and while it’s not precisely an invitation to a friendly game of “who wore it best,” it does set the stage for increased scrutiny of DEI practices.
Publicly traded companies are taking a cautious approach, with some opting to sidestep terminology that could easily warrant a spotlight—think of it as a corporate version of “don’t say the ‘D’ word.” Instead of using phrases like “diversity, equity, and inclusion,” there’s a noticeable pivot towards softer, less conspicuous terminology. “Inclusion,” “workplace well-being,” and “a culture of openness” are popping up as euphemisms that can exist in the same universe without ruffling any bureaucratic feathers. Who knew sidestepping an executive order could be akin to navigating a minefield while juggling flaming torches?
Moreover, some companies are ditching the breakdown of their workforce by race and gender, choosing instead to refer to “workforce statistics” or “composition.” This language shift might seem innocuous, but it represents a strategic maneuver to avoid unnecessary entanglements and scrutinies while still trying to show they at least read the book on inclusivity.
Government Contractors: Extra Careful than the Average Bear
Companies with federal contracts are tiptoeing even more gingerly through this minefield of government scrutiny. Executive Order 14173 specifically instructs the Office of Federal Contract Compliance Programs to put an end to promoting diversity in very clear terms. This means government contractors are even less likely to mention the “D” word explicitly—those essential contracts tend to have a chokehold on companies, after all.
Our analysis of these entities reveals a marked decline in direct references to DEI practices. If private sector companies are navigating the hurdles of DEI disclosures, their government contractor counterparts are employing an arsenal of euphemisms while remaining conservative in their approaches. They’re more likely to reduce any explicit mention of DEI, when compared to private firms, which still have a little bit of room to stretch their legs.
Risk Disclosures: New Threats on the Horizon
In addition to the strategic linguistic gymnastics taking place, there's been a notable trend of companies identifying DEI initiatives as a new risk factor. Corporations are finding themselves in a public relations balancing act: risk disclosing the potential backlash from insufficient DEI initiatives versus the risk of being deemed “too progressive” by differing factions of the public. Previously, organizations would fret about potential criticisms for failing to meet DEI objectives. Now, they’re more concerned about the legal ramifications tied to federal investigations due to heightened scrutiny.
This shift might sound oddly reminiscent of a game of corporate musical chairs, where the music starts playing, and everyone must scramble to avoid being caught flat-footed. The devil here isn't just in the language, but in the potential fallout from their public filings.
Conclusion: A New Era of Corporate Discretion
The evolving federal stance toward DEI initiatives is prompting public companies to reevaluate their strategies. In this era of unpredictability, corporate leaders find themselves weighing the risks of litigation against the public’s perception of their values. Should they feature a thorough exposition of their DEI initiatives, or would it be wiser to dance around the subject like a politician dodging a tough question?
The long-term impact of these executive orders on corporate disclosures is still uncertain. However, one clear trend has emerged: corporations are increasingly shying away from terms closely associated with DEI. Companies are even softening the language regarding their actions and measures, as a means of navigating this freshly laid bureaucratic minefield.
As companies scrutinize their 10-K Annual Reports, it’s wise to appreciate that these disclosures will require strategic contemplation. Mintz’s securities and capital markets teams are keeping a vigilant eye on these trends to guide public companies in this era of emerging challenges and potential risks. After all, navigating regulatory waters calls for a steady hand and a sharp mind—unless you’re lucky enough to have a good lawyer with a penchant for witty commentary on speed dial.
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