Why Are Public Companies Staying Silent on DEI When the World Is Demanding Action?

Ever notice how the quietest landscapes can sometimes mask the loudest storms brewing beneath the surface? That’s kinda what’s going on right now with public companies and their hush-hush stance on diversity, equity, and inclusion (DEI) programs. They’re barely whispering about it—but meanwhile, the Department of Justice just dropped some serious new guidance that’s shaking things up like a thunderclap in a boardroom. The DOJ’s latest move is basically drawing the lines in the sand about what counts as lawful when it comes to DEI initiatives, and spoiler alert: race- or sex-based programs? Those are now walking a legal tightrope. But here’s the kicker—despite the federal government waving the regulatory red flag, shareholders aren’t exactly rushing to side with the DOJ. In fact, most anti-DEI proposals are getting crushed at the ballot box. So, what gives? Why the silence from companies when the pressure’s mounting from Washington but their own investors seem pretty chill? It’s a wild juxtaposition that begs the question: is the real battleground over DEI happening in the courtroom, the boardroom, or somewhere in between? Let’s dive into the discord and decode what this all means for businesses navigating these choppy waters. LEARN MORE.

Public companies haven’t had much to say lately about diversity, equity and inclusion initiatives. Avoiding the conversation hasn’t stopped the momentum against so-called DEI programs, though.

In July, Attorney General Pamela Bondi released new Department of Justice guidance outlining the kinds of DEI programs the agency believes run afoul of federal anti-discrimination laws. The document lays out specific practices the DOJ considers unlawful or presumptively discriminatory, along with nine “best practices” aimed at keeping organizations compliant. The guidance applies broadly to any entity covered by those laws, including public and private employers, schools, and contractors.

The newly issued DOJ guidelines take special issue with policies centered around “protected characteristics like race, sex, color, national origin, or religion.” For example, raced-based scholarships, hiring policies and leadership programs are unlawful, according to the memo. It implies the Justice Department will have wide latitude to interpret what runs afoul of the guidance, extending its prohibitions to “proxies for protected characteristics” such as geographic preferences. Additionally, the guidance places responsibility on recipients of federal funding to make sure those resources do not support “third-party programs” engaged in what the DOJ deems discriminatory practices.

Among the DOJ’s best practices to keep entities compliant with its guidelines: Ensuring that “all workplace programs, activities, and resources should be open to all qualified individuals, regardless of race, sex, or other protected characteristics.” DOJ also advised ending “any program or policy designed to achieve discriminatory outcomes, even those using facially neutral means.” Entities should also evaluate the criteria underpinning their programs and policies to weed out proxies for factors such as race and sex, according to the guidance.

Of note to corporate America, the DOJ guidance draws up a roadmap for whistleblowers and lawyers to take legal action against businesses for maintaining DEI initiatives. “Protection against retaliation” is one of the key points articulated in the memo.

“DOJ’s new guidance is already influencing enforcement strategy and will likely serve as a template for False Claims Act whistleblowers,” said lawyers from Fenwick & West LLP in a commentary on the DOJ memo. “Companies that directly or indirectly interact with federal funds should review their practices immediately.”

It seems that companies are way ahead of the federal government – at least in terms of tamping down their messages about DEI. An analysis of 2025 corporate filings by Winston & Strawn LLP earlier this year found that 68 of 74 Fortune 100 companies “parsed back references to DEI initiatives in their proxy statements in at least some way,” such as reducing the visibility of features like diversity matrices.

The proxy statement of Equifax Inc. offers a prime example of how companies’ approaches to DEI changed in their disclosures from 2024 to 2025. In a section of the report dedicated to changes to board composition, Equifax noted last year that it had added three female members and one racially diverse director since 2020. The company omitted those distinctions in the ’25 edition. Similarly, a passage on identifying potential board members in this year’s proxy statement added “professional background” and “education” to “gender, age, race and ethnicity” in a discussion of the diversity of candidates.

Meanwhile, the tone of shareholder proposals related to DEI is changing. Against a backdrop of declining submissions overall, the share of proposals against environmental, social and governance initiatives increased from ’24 to ’25. Proposals intended to dilute or eliminate DEI programs nearly doubled during that same period, up from 23% last year to 40% this year.

Corporate shareholders, however, haven’t shown much interest in joining the anti-DEI movement. For instance, a proposal to remove DEI-related performance goals from executive pay packages at Coca-Cola received just 1.1% of stockholders’ votes in support. At 30 of the largest U.S. companies, shareholders struck down all anti-DEI proposals this year. Most received less than 2% of shareholders’ votes.

As such, the divide over DEI between the DOJ and investors appears stark: The federal government is using its regulatory bullhorn to decry the programs, but they still have broad support from shareholders. No wonder the companies have so little to say.