Category Archives: Diversity, Equity, and Inclusion (DEI)

BlackRock’s Voting Choice Program Expands to Accommodate Diverging Client Priorities with More Tailored Voting Guidelines

by Adam O. Emmerich, David A. Katz, Karessa L. Cain, Elina Tetelbaum, and Carmen X. W. Lu

Photos of the authors

Left to right: Adam O. Emmerich, David A. Katz, Karessa L. Cain, Elina Tetelbaum and Carmen X. W. Lu. (Photos courtesy of Wachtell, Lipton, Rosen & Katz)

In recent years, one of the most significant developments in corporate governance has been the adoption and expansion of voting choice programs by the largest institutional investors.  Such changes have come in response to growing scrutiny and pressure from asset owners and regulators with diametrically opposed and fervently held views on the role of environmental and social issues such as climate change and diversity, equity and inclusion (DEI) in investment decisions.  In furtherance of this trend, BlackRock has now adopted separate voting guidelines tailored towards specific funds and investors.

Early this month, BlackRock released climate and decarbonization stewardship guidelines for its funds with explicit decarbonization or climate-related investment objectives or other funds where clients have instructed BlackRock to apply these guidelines to their holdings.  These new guidelines will supplement BlackRock’s benchmark policies applicable to all assets under management and will focus attention on how companies have aligned their business model and strategies to meet the goals of the Paris Agreement.  A total of 83 funds with $150 billion of combined assets are expected to be covered by the new guidelines.  BlackRock has indicated that it will apply the guidelines to those companies held by covered funds and clients who have opted into the guidelines and that produce goods and services that “contribute to real world decarbonization,” have a “carbon intensive business model” or face “outsized impacts from the low carbon transition,” based on their Scopes 1, 2, and 3 greenhouse gas emissions. 

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The Future of ESG: Thoughts for Boards and Management in 2024

by Martin Lipton, Steven A. RosenblumAdam. O. EmmerichKaressa L. CainKevin S. Schwartz, and Carmen X. W. Lu

Top left to right: Martin Lipton, Steven A. Rosenblum, and Adam. O. Emmerich.
Bottom left to right: Karessa L. Cain, Kevin S. Schwartz, and Carmen X. W. Lu. (Photos courtesy of Wachtell, Lipton, Rosen & Katz).

The term “ESG” has steadily faded from the investor and corporate lexicon over the past year in the wake of cultural and political clashes over its meaning and purpose. “Anti-ESG” legislation adopted by several states has created legal and financial hurdles around the term. Institutional investors have gone quiet on ESG amid public criticism and congressional subpoenas. BlackRock has publicly disavowed the term for having become too politicized. The use of “ESG” in earnings calls has dropped precipitously. 

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The 2nd Annual Charlotte E. Ray Lecture: Reflections on Diversity, Equity, and Effective Compliance

by Carolyn R Pautz, PhD

Photo courtesy of the author

On February 7th, Howard University School of Law, working with Steve Solow (Baker Botts), Preston Pugh (Crowell & Moring), and Ben Wilson (Beveridge and Diamond), hosted the 2nd Annual Charlotte E. Ray Lecture.  The program featured keynote speeches by Acting Assistant Attorney General Nicole Argentieri, former Attorney General Loretta Lynch, and panels with esteemed members of the Department of Justice, U.S. Attorney’s offices, and private practice.  The event provided an intimate look into the career trajectories of the speakers, the impact that the totality of their lives has played in their career and the influence of their personage on their respective communities.  Most pertinent to this piece, which focuses on diversity of compliance teams as a central factor in effective risk management, the event emphasized two broad themes: first, the importance of cultivating and carrying forward a sense of service and responsibility towards one’s community; and second, that in order to understand the difference one can make as they advance in the field of law, individuals need to ask themselves why their presence in a particular role matters uniquely.  Below, these themes are extrapolated to trace the relationship between diversity (including age, gender, race, and ethnicity), universal (or communal) norms, individual determination of what is “good” and “right”, and effective compliance programs. 

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California Privacy Protection Agency Publishes Draft Regulations on Automated Decisionmaking Technology

by Hunton Andrews Kurth LLP

photo of the author

On November 27, 2023, the California Privacy Protection Agency (“CPPA”) published its draft regulations on automated decisionmaking technology (“ADMT”). The regulations propose a broad definition for ADMT that includes “any system, software, or process—including one derived from machine-learning, statistics, or other data-processing or artificial intelligence—that processes personal information and uses computation as whole or part of a system to make or execute a decision or facilitate human decisionmaking.” ADMT also would include profiling, which would mean the “automated processing of personal information to evaluate certain personal aspects relating to a natural person and in particular to analyze or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behavior, location, or movements.”

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Biden Administration Issues Sweeping Executive Order Directing Federal Agencies to Examine and Address Risks of Artificial Intelligence

by William Savitt, Mark F. Veblen, Kevin S. Schwartz, Noah B. Yavitz, and Courtney D. Hauck

Photos of the authors

From left to right: William Savitt, Mark F. Veblen, Kevin S. Schwartz, Noah B. Yavitz, and Courtney D. Hauck (Photos courtesy of Wachtell, Lipton, Rosen & Katz)

On Monday, the Biden Administration issued a long-awaited executive order on artificial intelligence, directing agencies across the federal government to take steps to respond to the rapid expansion in AI technology. The order attempts to fill a gap in national leadership on AI issues, with Congress showing little progress on any comprehensive legislation. The order mandates regulatory action that could affect companies throughout the domestic economy, including: Continue reading

DEI Initiatives Post-SFFA: Considerations for Boards and Management

by Martin Lipton, John F. Savarese, Adam J. Shapiro, Erica E. Bonnett, Noah B. Yavitz, and Carmen X. W. Lu

Photos of the authors

Top left to right: Martin Lipton, John F. Savarese, and Adam J. Shapiro.
Bottom left to right: Erica E. Bonnett, Noah B. Yavitz, and Carmen X. W. Lu
(Photos courtesy of Wachtell, Lipton, Rosen & Katz)

It is no secret that American corporations face vigorous — and often conflicting — demands concerning diversity, equity and inclusion (DEI) initiatives.  Over the past year, DEI initiatives and commitments have come under pressure in the face of macroeconomic headwinds, political scrutiny and legal challenges.  That pressure has only grown following the Supreme Court’s recent decision against affirmative action in SFFA v. Harvard (as discussed in our prior memo), after which Attorneys General from both red and blue states sent conflicting letters to Fortune 100 companies on what the SFFA decision meant for corporate DEI initiatives. 

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The Supreme Court’s Upcoming Affirmative Action Decision: Potential Implications for Private-Sector Employers

by Jyotin Hamid, Simone S. Hicks, Mary Beth Hogan, Arian M. June, Tricia Bozyk Sherno, Rachel Tennell, and Katelyn Masket

Photos of the authors

Top row from left to right: Jyotin Hamid, Simone S. Hicks, Mary Beth Hogan, and Arian M. June.
Bottom row from left to right: Tricia Bozyk Sherno, Rachel Tennell, and Katelyn Masket.
(Photos courtesy of Debevoise & Plimpton LLP)

The Supreme Court of the United States is expected to issue a widely anticipated decision next month concerning the permissibility of race-conscious affirmative action in higher education in the Harvard College and University of North Carolina cases.[1] Although these cases arise in the context of education, not employment, and do not formally concern laws governing private-sector employment, we expect that the decision may have far-reaching implications for how courts, lawmakers, employers, and employees address efforts to promote diversity in private-sector workplaces. In particular, the decision may have an impact on how employers navigate the line between permissible efforts to promote workplace diversity and avoiding so-called “reverse discrimination” lawsuits brought by employees who may claim that they are disadvantaged by such efforts.

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NYC’s AI Hiring Law Is Now Final and Effective July 5, 2023

by Avi Gesser, Anna Gressel, Jyotin Hamid, Tricia Bozyk Sherno, and Basil Fawaz

Photos of the authors

From left to right: Avi Gesser, Anna Gressel, Jyotin Hamid, and Tricia Bozyk Sherno (Photos courtesy of Debevoise & Plimpton LLP)

The New York City Department of Consumer and Worker Protection (the “DCWP”) has adopted final rules (the “Final Rules”) regulating the use of artificial intelligence for hiring practices. The DCWP’s Automated Employment Decision Tool Law (the “AEDT Law” or the “Law”) requires covered employers to conduct annual independent bias audits and to post public summaries of those results. To recap, the DCWP released an initial set of proposed rules on September 23, 2022, and held a public hearing on November 4, 2022. Due to the high volume of comments expressing concern over the Law’s lack of clarity, the DCWP issued a revised set of proposed rules on December 23, 2022, and held a second public hearing on January 23, 2023. After issuing the Final Rules, the DCWP delayed enforcement of the Law for the second time from April 15, 2023 to July 5, 2023.

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California Restricts Insurers’ Use of AI and Big Data

by Eric R. Dinallo, Avi Gesser, Marshal L. Bozzo, Anna R. Gressel, and Scott M. Caravello

On June 30, 2022, the California Department of Insurance (the “Department”) released Bulletin 2022-5 (the “Bulletin”), which places several limitations on the use of Artificial Intelligence (“AI”) and alternative data sets (“Big Data”) by the insurance industry. The Bulletin states that the Department is aware of recent allegations of racial discrimination in marketing, rating, underwriting and claims practices by insurance companies and reminds all insurance companies of their obligations to conduct their businesses “in a manner that treats all similarly-situated persons alike.”

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Can Securities Laws Help Fight Discrimination in Corporate America?

by  John Joy

According to one survey, almost half (42%) of U.S. workers have encountered discrimination in the workplace. When it comes to issues of discrimination, most companies are prohibited from discriminating on the basis of race, color, religion or sex by Title VII of the Civil Rights Act of 1964. In addition, most states have anti-discrimination laws that go beyond Title VII protections and many major cities also have anti-discrimination laws that apply on top of these.

Even with multiple layers of legal protections, victims of discrimination and racism can often find themselves facing an uphill battle when it comes to enforcing legal rights against a major corporation. These difficulties can be particularly acute if the victim has experienced discrimination at the hands of a publicly traded company.

Public companies are the driving force of the U.S. economy. Not only do they employ up to one third of the non-farm workers in the U.S., they comprise some of the largest, most profitable and most visible brands in the U.S. It’s no surprise that for most private companies and start-ups, the ultimate goal and measure of success is to ‘go public.’

When it comes to discrimination at public companies, victims can avail of all the anti-discrimination laws mentioned above. However, federal securities laws applicable to public companies may provide an additional and alternative way for anti-discrimination advocates to hold corporations to account.

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