Is Your DEI Program Inviting Lawsuits?
As attorneys and DEI experts, we’re getting a lot of questions about affirmative action, workplace DEI programs, and reverse discrimination lately.
While these are all distinct concepts, they’re commonly conflated by their critics, who argue that they are all socially accepted methods to harm historically favored Americans: chiefly, white people and men.
Reverse can mean “opposite.” It can also mean “move backwards.” When it comes to reverse discrimination, everyone has their own interpretation.
In theory, reverse discrimination makes a lot of sense: If our laws prohibit discrimination on the basis of race, then white people and melanin-rich people are all protected by those laws. Laws like Title VII of the Civil Rights Act of 1964 (which prohibits employment discrimination on the basis of race, color, religion, sex and national origin) do not differentiate between historically privileged identities and historically excluded identities.
In practice, reverse discrimination has historically been a weapon of last resort for white people: for better or worse, complaints filed by white men have generally been regarded as childish or petty. That isn’t to say discrimination against white people doesn’t happen (it does) or that anyone should ever be shamed for advocating for themselves (they shouldn’t), but cultural expectations have kept these complaints from reaching a courtroom or Equal Employment Opportunity Commission (EEOC). The societal pressures made the legal system less of an option.
But our societal winds are changing. Just ask your uncle at Thanksgiving what he thinks. (Disclaimer: Imprint Legal Group attorneys do not advise this. Nope.)
Let’s break down the top misconceptions around on these topics.
Myth: This is a uniquely American problem.
In the United States, we focus on race and sex more than any other excluded identity. Although our anti-discrimination laws also address disability, national origin, veteran status, age, pregnancy, etc., almost all reverse discrimination cases and affirmative action programs primarily target race and sex, including SOGI (sexual orientation and gender identity).
But at least eighteen countries, including the United States, have some form of affirmative action laws to promote historically disadvantaged identities in certain sectors.
For example, in Northern Ireland, employers have to monitor the religious composition of their workforce, along with annual reports and training, to ensure Catholics and Protestants are employed equally.
In Norway, affirmative action promotes men seeking jobs in traditionally “female” sectors like childcare, nursing, and early childhood education.
Myth: Reverse discrimination complaints are on the rise.
Reverse discrimination cases get a lot of media attention thanks to some jaw-dropping monetary awards. In June 2023, a jury awarded $25.6 million to a white Starbucks manager who was fired in the aftermath of high-profile arrests of two Black men at a Philadelphia location in 2018.
Despite all the recent media attention, the number of reverse discrimination complaints still pale in comparison (eh? pale?) to traditional discrimination cases.
EEOC’s most recent data from 2021 demonstrates a fairly steady rate of discrimination cases filed by white folks, even a slight decline over the last decade. Anecdotally, this aligns with Imprint Legal Group employment lawyers’ experience across several states.
In a similar fashion, after the 2016 election, school lawyers anticipated an uptick in male students filing Title IX claims, alleging reverse discrimination because of a pro-female, anti-male bias in sexual harassment cases. There was one notable case but the anticipated nationwide trend never came to fruition. Doe v. Columbia Univ., 831 F.3d 46 (2d Cir. 2016).
Myth: The Supreme Court’s affirmative action decision made workplace DEI programs illegal.
The widespread effects of Students for Fair Admissions, Inc. v. Harvard College (“SFFA”) are probably not as bad or as good as what shouting heads have made it seem. Students for Fair Admissions v. Harvard, 600 U.S. ___ (2023).
In SFFA, the Supreme Court (“SCOTUS”) addressed a thorough admissions procedure utilized at Harvard and University of North Carolina, which considered race as one of the procedural steps. These procedures are almost never used outside of certain universities, and SCOTUS refused to address anything outside of those university’s admissions procedures (e.g., a university’s consideration of race in scholarships and financial aid). The court also explicitly green-lighted consideration of “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
It is highly unlikely that your private workplace engages in the specific type of affirmative action struck down by the Supreme Court.
But immediately after the SFFA ruling in July 2023, several Republican Attorneys General and conservative legal activists used the ruling to encourage the elimination of corporate DEI programs or any program that uses race as a factor, such as scholarships, investor funding, supplier diversity programs, etc.
Bolstered by widespread attention, the conservative legal activists behind SFFA set their next sights on a venture capital firm that backs start-ups led by Black women and two corporate law firm fellowship programs aimed at bolstering diversity in the legal profession. The activists are using entirely different legal arguments from SFFA in these cases, a point which has been misunderstood or (ahem) whitewashed in the media coverage.
Fellow law nerds, take note: Conservative activists are using several different legal approaches, in addition to applicable state laws:
Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the 14th Amendment (used in SFFA)
Title VII of the Civil Rights Act of 1964 (used in the vast majority of reverse discrimination employment actions brought by plaintiffs). In May 2023, SCOTUS refused to consider a Title VII case involving reverse discrimination wherein two white male police officers claimed they were fired for challenging the police department’s diversity initiative to increase hires of women and people of color.
Breach of fiduciary duty (used by a Starbucks shareholder to challenge Starbucks’ diversity policies; that case was dismissed in August 2023 as frivolous)
Section 1981 of the Civil Rights Act of 1866 (yes, 1866) which prohibits intentional discrimination on the basis of race, color, and ethnicity when making and enforcing contracts (used in the latest challenges regarding contracts designated for historically excluded identities)
To our knowledge, none of these cases has considered conflicting laws that sanction affirmative action, such as 1970s regulations that mandate companies who contract with the federal government have affirmative action policies. 41 C.F.R. 60.
Don’t get it twisted: There are multiple legal standards at play when considering race in our workplaces and schools, and each standard comes with a separate analysis. It would be a mistake to hear about one case and think it applies to your organization.
Those organizational leaders who are now abandoning their once-promoted “mission” of increasing diversity were likely always going to abandon it; the Supreme Court’s decision in SFFA v. Harvard and recent media attention simply provides those leaders the overly-simplistic cover of “risk management” to ditch what they wanted to ditch anyway.
What should organizations do?
DON’T stop working towards sensible DEI goals. DEI means building systems in which each person can thrive in their own way without barriers. Instead of using quotas or hiring preferences based on race (which aim for cosmetic diversity and have sketchy results at best) or benefits that exclude someone based on race (“no white people allowed at the Black employee happy hour”), focus instead on building inclusive culture and breaking down barriers for historically excluded groups.
Integrated, evidence-backed, well-funded DEI work is harder than “By 2035, we’ll hire 30% more people of color,” but it’s more effective and legally sound. If you’re not sure where to start, our DEI lawyers are happy to chat.
DO document the rationale behind hiring, promoting, and firing employees to demonstrate their identity was not a determinant factor. Leaders should write down what information was considered, how information was weighed, and what disagreements may have influenced the ultimate decision.
The most likely time an organization will face a reverse discrimination lawsuit is when someone is fired. If you’re going to fire a white employee for appearing at a Unite the Right Rally, have you ever fired a similarly situated Black employee for advocating violence towards Mexicans? Ensure someone’s race is not a determinant factor in your decision-making and how you can prove that.
DO take care of your employees of color. A Black woman is promoted instead of a white man, who then files a reverse discrimination complaint. The workplace leaders naturally shift their immediate focus to defending the complaint, knee-deep in attorneys and legal discovery … and in the background stands a newly-promoted employee of color, who did nothing wrong, but now feels like a burden. It is essential for organizational leaders to support the newly-promoted employee with simple, repeated messaging: “We want you here. You earned this position. What do you need from us?”
Imprint Legal Group partners with schools and businesses to create inclusive spaces while complying with state and federal laws. To provide training for your workplace or discuss any questions about your particular situation, contact: hello@imprintlegalgroup.com. All posts of Imprint Legal Group and its authors are intended as information, not legal advice. This information is valid as of September 2023.
