Our Center for Human Resources at Wharton recently had a discussion with HR people trying to get a sense of where diversity, equity and inclusion policies are headed. Here’s what I concluded from it. But first, some background.

It’s the “D” in DEI that gets all the attention. The “equity and inclusion” goals are very much on the sideline, in part because they don’t bring to mind any particular practice or change; diversity focuses attention on hiring as a means of change.

It is a hot-button issue because of the perception that diversity programs are about giving preference in hiring and promotions to people other than white men. The widespread belief that DEI is another word for hiring preferences is unfortunate, given that—except in very limited situations—any such practice violates the law. Affirmative action is also assumed to be a synonym for preferential hiring, but again, except in very unusual circumstances, it is limited to reducing bias and shaping the applicant pool.

In fairness, the legal line is blurry, especially when we don’t articulate it. You can have a policy and even a goal to increase the diversity of your organization; you can act to secure more diverse applicant pools; you can even have programs to help specific groups advance in the organization. But you cannot give preference in actual hiring decisions.

The blurring and confusion are because of the long-running battle between Democrats, who have pushed for greater diversity as a goal through legislation, and Republicans, who have pushed back, largely through the courts. While the U.S. Supreme Court’s ruling against using race as a criterion in college admission decisions last year does not literally apply to employment, the underlying rationale seemed to apply to jobs as well—and gave the opposition to DEI programs greater legitimacy.

The backlash against DEI has come mainly in the form of complaints by Attorneys General in conservative states and private legal groups telling employers that such policies should be dropped because, in their view, they violate the law. CEOs and their boards certainly noticed the conservative attacks on Budweiser and Target’s marketing approaches to diverse audiences and also how those two companies quickly backtracked.

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