After the U.S. Supreme Court’s decision in SFFA v. Harvard/ UNC, opponents of diversity, equity, and inclusion (DEI) have launched an all-out attack on corporate DEI programs. Recently, however, the courts have offered some guidance to beleaguered corporations trying to determine how to avoid litigation over their DEI programs.
Guidance on Race-Neutral Admission Policy
In late February, the Supreme Court denied a petition for review in Coalition for TJ v. Fairfax County, leaving in place a decision by the U.S. 4th Circuit Court of Appeals. The 4th Circuit had determined the high school’s use of geographic and socioeconomic factors and student experiences were allowable as a race-neutral admissions policy despite claims the policy adversely affected Asian Americans.
Justices Clarence Thomas and Samuel Alito strongly objected to the refusal, saying it established a “blueprint for evading” last term’s SFFA decision. This provides helpful guidance to employers on the type of race-neutral factors the Court would approve after
SFFA.
Individual Harmed by Diverse Fellowship Must Be Identified
The 2nd Circuit rejected claims against Pfizer’s diversity fellowship because the advocacy group that filed the claims wouldn’t identify by name one person who was harmed. In Do No Harm v. Pfizer, the appeals court said the identity of at least one of the students is necessary to determine whether the individuals “are not merely enabling the organization to lodge a hypothetical legal challenge.”
The requirement that anti-DEI organizations provide identities of those individuals they claim were injured by DEI programs should undercut the organization’s strategy used to attack DEI programs in court.
White Officer Loses DEI Training Case but with Warning for Employers
The 10th Circuit upheld a lower court finding that a white correctional officer failed to prove DEI training created a racially hostile work environment. Joshua Young had alleged the training made broad generalization based on race and portrayed the U.S. as a racist country riddled with discrimination.
While the court found Young failed to show how the training amounted to or spurred race-based harassment sufficiently severe or pervasive to violate Title VII of the Civil Rights Act of 1964, two of the three judges on the panel said the training’s “messaging could promote racial discrimination and stereotypes” and “encourage racial preferences in hiring, firing, and promotion decisions.” This decision is both a victory for employers but also a warning that DEI training needs to be carefully vetted to avoid possible liability.
‘Stop WOKE’ Act Ban on DEI Training Violates First Amendment
The 11th Circuit—in In re: Amendments to Rules Regul., the Florida Bar-Continuing Legal Educ.—upheld the lower court’s preliminary injunction against Florida’s “Stop WOKE” Act ban on mandatory DEI training, agreeing the Act violated the First Amendment. The Act outlines a set of eight ideas the state determined were “discriminatory and offensive.” The panel rejected Florida’s argument that the First Amendment didn’t apply to the law because it targeted employers’ conduct of requiring attendance at training rather than the speech itself. Although the decision allows employers to make DEI training mandatory, you should carefully vet any proposed DEI and equal employment opportunity (EEO) training to ensure it isn’t overly harsh or overly exclusive about what diversity is and who it is meant to protect.
4th Circuit Upholds Jury Verdict for White Male Executive
The 4th Circuit upheld the jury verdict for a white hospital executive who was fired as part of a diversity push by his employer. In Duvall v. Novant Health Inc., the appeals court determined David Duvall presented “sufficient evidence” the hospital discriminated against him based on his race and sex. The court affirmed his $2.3 million back pay award along with 8% prejudgment interest and $1.1 million in front pay.
The court disallowed the jury’s finding of $300,00 in punitive damages, saying Duvall failed to present affirmative evidence his boss knew his firing would violate Title VII. This case is a warning that firing an individual because of race or gender violates Title VII and that a company’s DEI initiative seeking to increase diversity in the executive ranks can be used as evidence of discrimination.
Conclusion
While these cases are helpful in providing employers guidance in the ongoing backlash against DEI programs, they also send a cautionary message to carefully review all aspects of your DEI initiatives in light of the ongoing risk they may create.
H. Juanita Beecher is an attorney with FortneyScott in Washington, D.C. You can reach her at nbeecher@fortneyscott.com