Preparing For Challenges To Workplace Diversity Programs

Diversity, equity, and inclusion (DEI) programs, many of which have grown into a vital part of company employment policy—and image—over the past few decades, have gotten complicated.

 In the July VH blog, we discussed the possible effects on employers of the U.S. Supreme Court (SCOTUS) decision to end affirmative action considerations in college admissions. (The decision itself does not apply to businesses, even those with federal contractors.)

 Now, six months later, the business world still has no clear consensus on what the decision means for them and whether they should continue corporate DEI and affirmative action initiatives. Some business leaders, like technology entrepreneur Elon Musk, believe that “DEI must DIE,” because the initiatives are themselves discriminatory. Others, like Misty Gaither, of online jobsite Indeed, assert, “We are doubling down on our (DEI) efforts because we believe it’s the right thing to do.”

 According to Crowell & Moring attorney Trina Farley Barlow, the SCOTUS decision has resulted in a number of lawsuits in which non-minority plaintiffs endeavored to expand the scope of the decision. “These lawsuits sought to test the extent to which private employers can consider race when administering their DEI programs,” she said. The litigation has been filed under Title VII of the Civil Rights Act, which historically has been the basis for claims of discrimination in employment by minority plaintiffs. Advocates of eliminating affirmative action and DEI programs are encouraging non-minority employees to take legal action, in hopes of getting a case before SCOTUS and setting a precedent for business that mirrors the college admissions decision.

 In December, Reuters reported that at least six major U.S. companies, including JPMorgan Chase, have modified their diversity policies to reduce risk of such lawsuits. According to the article, “The changes made by the companies primarily involved removing language that said certain programs were for underrepresented groups or modifying executives' goals for increased racial representation in the workforce.” Other companies, including four large law firms, have made similar changes.

 The 2024 presidential campaign is likely to bring even more attention to employer diversity initiatives and policies that support minority development or hiring. DEI opponents will continue to look for cases that challenge racial considerations in the workplace, hoping for one that will progress to the Supreme Court.

We encourage you to review your DEI initiatives and hiring policies with an experienced employment attorney. Do you need to change everything? Probably not. But small shifts in language can reflect that your company’s commitment to diversity, equality, and inclusion extend to all employees and prospective employees. Employment lawyers understand how to promote your values while protecting your interests. We are, as always, ready to help.