Immediately after the Supreme Court’s decisions in SFFA v. Harvard/UNC eliminating the use of race in higher education admissions, questions were raised about corporate diversity, equity, and inclusion (DEI) programs. Edward Blum—founder of the organization Students for Fair Admissions (SFFA) that won the Harvard/UNC decision—and former Trump administration staffer Stephen Miller have aggressively challenged corporate DEI programs after the Supreme Court’s decision. Recently, “influencer” Robby Starbuck has used his social media presence to force corporations with conservative consumers to limit or eliminate their DEI programs.
Starbuck Forces Corporate DEI Changes
Starbuck is a right-wing commentator with over half a million followers on X. He has launched social media campaigns against what he defines as “woke corporations” and their DEI programs. In response to his social media campaign, major corporations that responded to George Floyd’s death with increased DEI focus have abandoned much of their programs including supporting the Human Rights Campaign (HRC) Corporate Index on LGBTQ+ policies and practices.
Corporations are quickly responding to Starbuck’s attacks because they don’t want to be the next “Bud Light.” The boycott of Bud Light last year when it used a transgender influencer for a social media promotion resulted in the loss of its spot as top-selling beer in the United States. Retail store Target also suffered significant sales loss in a backlash over its Pride Month merchandise last year. Both companies have a large number of conservative customers who responded negatively to the companies’ DEI attempts.
Starbuck has followed a similar campaign with threats against companies with conservative customers. His threats have caused the following companies to disavow all or part of their DEI programs:
- Tractor Supply—Dismantled all DEI efforts and removed all DEI-related content from its company website.
- Harley Davidson—Eliminated minority-owned supplier spending goals, dropped socially motivated training for employees, and abandoned corporate DEI function.
- John Deere—No longer participating in “cultural awareness parades” and business resource groups will focus exclusively on professional development, mentoring, and supporting talent recruitment.
- Ford—Refocused employee resource groups (ERGs) opening to all workers and no longer engage with HRC Corporate Equality Index and various best places to work lists.
- Lowe’s—No longer participate in HRC Corporate Index and ending identity-based ERGs replacing with a group for all employees; end participation in Pride and other socially related community events.
- Brown-Forman Corp.—Dropped DEI entirely.
- Molson Coors—Stop linking executive compensation to employee representation; scrap supplier diversity goals and no longer engage in HRC Index.
- Black & Decker—Dismantling DEI department and no longer engaging with HRC.
- Polaris—Removed all references to DEI from its corporate website stating that “the phrase DE&I has evolved from a general term into something increasingly politicized with varying interpretations.”
Starbuck has stated he is receiving information on corporations’ DEI programs from “whistleblowers” who send him documents and other content related to companies’ DEI programs.
Meanwhile Litigation Against DEI Continues
Edward Blum’s latest group, American Alliance for Equal Rights (AAER), continues successfully to attack programs that provide benefits exclusively to African Americans. He had sued Fearless Fund alleging its grant funding to Black women entrepreneurs violated Section 1981 of the 1866 Civil Rights Act. Fearless Fund settled the litigation after the U.S. 11th Circuit Court of Appeals ruled the grant contest was substantially likely to violate Section 1981. The irony of the litigation is that the 1866 Civil Right Act was passed to protect the newly freed Black Americans. In the settlement, Fearless Fund agreed to end its grant program.
AAER also was successful in convincing a federal district court in Texas to block a Texas nonprofit from issuing grants to minority business owners as also violating Section 1981. Founders First Community Development Corp. was enjoined from issuing its Texas Job Creators Grants only to people who “identify as one of the following: Latinx, Black, Asian, Women, LGBTQIA+, Military Veteran, or [someone] located in a Low to Moderate Income area.”
Meanwhile, the Chicago Bears settled a lawsuit filed by a white male law student who alleged the football team refused to hire him as a “legal diversity fellow” because he was a white male. The lawsuit is similar to those Edward Blum filed against major law firms for their minority internships.
Finally, companies are under attack for their DEI training as well. Although the 10th Circuit dismissed the lawsuit over DEI training filed by former prison guard John Young, the decision held a warning for employers that a court could find DEI training to be harassment if it has “ideological messaging” or “race-based rhetoric” or if a white male employee becomes the subject of harassment after such training.
Next for DEI
If Republicans win Congress and the White House in the November 2024 election, employers can expect them to attempt to implement the recently introduced Dismantle DEI Act of 2024, which would limit—if not eliminate—DEI for the federal government, federal contractors, and federal grantees. In addition, employers can expect a potential second Trump administration to attack current DEI programs and limit employers’ DEI training.
Regardless of the results of the election, the anti-DEI groups will continue to attack corporate DEI programs, so employers should review their DEI programs to ensure they don’t violate Title VII of the Civil Rights Act of 1964 or Section 1981.
Written by the editors of the Federal Employment Law Insider.