Diversity & Inclusion

Attacks on DEI Increase

Corporate diversity, equity, and inclusion (DEI) programs continue to face new challenges after the Supreme Court’s decision last year banning explicit use of race in admissions to higher education—SFFA v. Harvard/UNC. It’s important to recognize that although the Court’s decision didn’t change the law, it did change how corporate DEI programs are perceived and, thus, how they operate.

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EEOC Commissioners Respond to Corporate DEI Challenges

As discussed in a previous article, Equal Employment Opportunity Commission (EEOC) Chair Charlotte Burrows and EEOC Commissioner Andrea Lucas responded immediately to the Supreme Court’s decision in Harvard/UNC and its likely impact on DEI programs. While Chair Burrows supported corporate DEI programs, Commissioner Lucas challenged corporations to review their DEI programs.

Most recently, in response to anti-DEI pushback from Elon Musk on X (formerly Twitter), Dallas Mavericks owner Mark Cuban said that although he didn’t make hiring decisions solely based on race or gender, he did take race and gender into account. In response, Commissioner Lucas said Cuban was violating Title VII of the Civil Rights Act of 1964 by taking race/gender into account in any way because it doesn’t allow race to be a motivating factor, plus factor, or tipping point and that it is important for employers to understand ground rules. Both EEOC Vice Chair Jocelyn Samuels and new EEOC Commissioner Kalpana Kotapal said DEI efforts properly implemented make companies more creative and better able to serve customers and clients.

In view of the varying positions of the EEOC commissioners, employers have been asking for updated guidance from the EEOC. At this point, however, additional guidance is unlikely, so employers will have to rely on the long-standing guidelines and guidance on voluntary affirmative action based on the principals of the Supreme Court’s decisions in Weber and Johnson.

Latest Attacks on Corporate DEI

Meanwhile, prominent anti-DEI warriors Stephen Miller and Edward Blum are continuing to challenge long-standing DEI practices.

As of February 14, Miller’s America First Legal (AFL) has filed 31 complaints with the EEOC alleging “woke” corporations. AFL is calling these “civil right complaints” by which it is seeking to get the commission to investigate the corporations—including the NFL, NASCAR, and others—for their various DEI programs, which it claims discriminate against whites and males.

On December 18, Miller launched an investigation of the EEOC by filing a Freedom of Information Act (FOIA) request to obtain communications and records related to the agency’s efforts to enforce Title VII against corporations using DEI practices. He cited a statement by Commissioner Kotagal on diversity and inclusion.

After successfully suing a number of prominent law firms over their minority internship programs, Blum and his American Alliance of Equal Rights (AAER) indicated they weren’t going to keep suing law firms. Nearly all the law firms sued agreed to revise their internship programs and expanded eligibility beyond minority students.

Blum’s group Students for Fair Admissions (SFFA) sought to have the Supreme Court rule that West Point couldn’t use race in its admission. The Court refused to rule at this point, but this is likely not the final word on the matter.

How Corporations Are Responding to DEI Attacks

Companies that have deep commitment to DEI are still committed but are stepping back and retooling their programs based on the new risks. Many corporations are conducting audits of their DEI programs to determine risks. Recent studies indicate corporations believe in the importance of diversity and will continue their DEI Programs because data show diverse organizations have better outcomes.

Written by the editors of the Federal Employment Law Insider.

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