New York Times: "A New Business on Wall Street: Defending Against D.E.I. Backlash" – Sidley’s Kai Liekefett Quoted

The New York Times's Lauren Hirsch writes about how the culture wars are playing out in Corporate America. Sidley’s Kai Liekefett is quoted. The article is below and here.

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A New Business on Wall Street: Defending Against D.E.I. Backlash

Companies are conducting vulnerability assessments, compiling research reports and writing plans for what to do if their diversity efforts come under attack.

By Lauren Hirsch

Oct. 26, 2024

Someone you probably have never heard of has managed to scare virtually all of corporate America — and Wall Street is creating a new cottage industry around the fear.

Robby Starbuck, a former music television director, has turned his social media account into a weapon against corporate D.E.I. efforts, whipping up frenzy, threatening boycotts and flooding companies with negative media mentions over their diversity, equity and inclusion efforts. Tractor Supply pared back from its D.E.I. initiative in June after Starbuck tweeted that it was “time to expose” the home improvement chain. John Deere followed suit in July and Harley Davidson in August, both times following public pressure from Starbuck.

Now, Wall Street law firms and communications outfits are building businesses around preparing companies for a Starbuck offense. The methods mirror how they would prepare for a cybersecurity attack: conducting vulnerability assessments, compiling research reports and writing plans for what to do if Starbuck comes calling.

The furious scrutiny gets at the heart of a question facing corporate America: After many companies adopted and heralded their efforts to improve diversity, equity and inclusion — often citing studies showing benefits for business — they’re now grappling with how to handle a backlash when both customers and executives are split over the policies.

Their investors are not in agreement either: The New York City comptroller’s office, which oversees the powerful New York State employees’ pension fund, is already threatening lawsuits if executives concede too much.

“As a company, you might be between a rock and a hard place,” said Kai Liekefett, who co-chairs the corporate defense practice at the law firm Sidley Austin. “You have an anti-D.E.I. activist clashing with a D.E.I. activist. And you are just basically just a battleground for the culture wars that are playing out in corporate America.”

Corporate America’s break-the-glass planning for a Starbuck attack comes as it faces a surging blowback to the D.E.I. practices it rushed to implement in 2020. The Supreme Court ruling ending affirmative action in U.S. schools last year opened up companies to litigation over D.E.I. programs. Customer revolts over diversity issues, like the boycott of Anheuser-Busch InBev over an ad campaign featuring a transgender influencer, lost the company a billion in sales. And a tense, deadlocked presidential election has further politicized the matter across the country.

Starbuck is “in a position where he can ride that wave,” Jason Schwarz, an employment lawyer at the law firm Gibson Dunn, said. He added that he’s had conversations with about 50 major companies about restructuring their diversity programs or communicating about them differently in order to avoid lawsuits, but few clients have aimed to scrap these efforts entirely.

The Starbuck defense playbook starts with stealth mode. Executives are telling employees not to look at Starbuck’s profile on LinkedIn, which could attract his attention. (Starbuck told DealBook an “onslaught” of Lowe’s employees looking at his profile initially drew his attention to the home goods retailer; it later became one of his targets.)

Communications and consulting firms trawl through any content that companies have on their website, annual report or elsewhere that might expose them to a potential attack from Starbuck. (Words like “diversity” and any public association with the Human Rights Campaign, an L.G.B.T.Q. advocacy group, are a particular red flag.)

Those considering dialing back some D.E.I. initiatives are also talking with unions, suppliers and others to understand the extent of potential financial repercussions. Will their liberal customers or suppliers boycott? Will their employees revolt? For many, these conversations started prior to Starbuck’s campaigns.

Starbuck himself seems amused at the effort. “If these companies really want to know how to be in a position where they can be sort of corporately neutral and stay away from the ire of conservative consumers, feel free to just drop me a line,” he told DealBook. “You don’t pay $1 million to a terrible consulting firm.”

He says many attempts to escape his attention, like deleting language from websites, are fruitless. “We have enough material to honestly go for years if necessary,” he said.

However companies ultimately handle their response to the pushback over D.E.I., it is causing a moment of reckoning within corporate offices. An examination of D.E.I. efforts forces executives to consider whether they have followed through on promises they may have made several years ago. The next question is whether they still want to.

If executives are “learning for the first time about some various initiatives somewhere within the company,” that’s the first issue, said Brian Bartlett, a strategist at the communications firm Kekst CNC. The second is if those initiatives are not in line with company priorities. “That is problematic,” he said.

Some executives say that changing how they talk or write about their D.E.I. efforts — the most common remedy — does not change the work that is going on behind the scenes. But for diversity experts, that maneuver naturally gives rise to different concerns: How do you hold your leadership accountable to something that is not written? And are companies at risk of simply listening to the whims of those provoking the day’s online outrage?

Starbuck’s audience is particular. Communications firm FGS Global found in its internal research that 17 percent of the “news-attentive” Americans it polled over age 45 have heard of him, while 38 percent of those under 45 have. It is also not clear how many of his 670,000 followers on X, and 350,000 Instagram followers, are actually bots.

“This very small minority of individuals have this outsized voice,” Porter Braswell, the founder of 2045 Studio, a membership network for professionals of color, told DealBook. “It’s forced all of us in the industry to start to have way more of a conviction around the importance of working together, so that we talk more about what’s actually happening on the front lines.”

For the cottage industry advising companies, any swing back in the pendulum may simply mean more fees and PowerPoint presentations. What that means for executives behind the scenes is up to them.

“The forces in this country politicized the issue,” Liekefett said. “Well, don’t talk about it, but still do it right.”

— Lauren Hirsch