Key Lessons From Recent Challenges to DEI Programs: Are Concerns over DEI Programs Overblown or Understated?
Less than a year after the United States Supreme Court decision ending race-conscious university admissions programs, the Equal Employment Opportunity Commission (EEOC) Vice Chair, Jocelyn Samuels, voiced skepticism at the notion that the Supreme Court’s decision affects private employers’ diversity, equity and inclusion efforts (DEI).
03.25.24
Nonetheless, challenges to employers’ DEI programs have been widespread following the Supreme Court’s decision, and they show no signs of slowing down despite their lack of success so far.
By way of background, on June 29, 2023, the U.S. Supreme Court released its decision in a pair of cases brought by the organization Students for Fair Admissions against Harvard University and the University of North Carolina. In its decision, the Supreme Court struck down affirmative action admissions policies at both institutions, finding that these admissions policies violated the Fourteenth Amendment Equal Protection Clause. This landmark decision marked the end of 45 years of legal precedent holding that an applicant’s race can be considered in some way by universities as a way to increase diversity on college campuses. Although, strictly speaking, the decision applies only to college admissions, its rationale and holding have spurred a new wave of litigation aimed at challenging private employers’ DEI programs.
Seizing the opportunity, anti-DEI organizations have relied on the Supreme Court’s decision to launch attacks on corporate DEI efforts throughout the nation. Recently, however, three federal appellate courts have pushed back on the idea that the Supreme Court’s affirmative action opinion should be applied to private employers.
- On March 4, 2024, the Eleventh Circuit blocked the state of Florida from enforcing parts of the Individual Freedom Act, known colloquially as the Stop WOKE Act, which would prevent private employers from holding mandatory training sessions on several race- and sex-based concepts. In a unanimous decision, the three-judge panel held that the sections of the WOKE Act at issue violated the First Amendment because they acted as restrictions on speech. Although this was an important win for DEI supporters, it highlights the concern that individual states might look to enact similar state legislation impacting DEI activities in that state. This would, in turn, create issues for multi-state employers who would be forced to comply with the specific laws of each state, many of which could potentially contradict each other.
- On March 6, 2024, the Second Circuit held that the anti-DEI organization, Do No Harm, did not have standing to challenge a Pfizer fellowship program aimed at recruiting employees from historically underrepresented groups because the association had not named any members who had been affected by the fellowship program. This decision is in accordance with general standing principles and serves as a reminder that anti-DEI organizations may not file a lawsuit without an actual showing that one of its members has been harmed by the DEI efforts the organization is seeking to challenge.
- On March 11, 2024, the Tenth Circuit found that a white employee, Jonathan Young, failed to show that he faced any harassing conduct from having to participate in mandatory diversity training that Young characterized as promoting the idea that all white people are racist. The court, however, left the door open for future challenges to mandatory diversity training if the employee can show that the training was so “severe” and “pervasive” as to constitute harassment.
Although these three decisions are key wins for DEI supporters, these challenges are likely just the beginning, as more and more anti-DEI organizations turn to the Supreme Court’s affirmative action opinion to challenge DEI efforts. Nonetheless, EEOC Vice Chair Samuels remains confident that concerns about how the Supreme Court’s decision affects DEI programs are “way overblown” and that the “vast majority” of DEI programs will remain unaffected by the Supreme Court’s ruling. Per Samuels, the Supreme Court’s decision is limited to the educational context and applies to situations where race was being explicitly used as a criterion for admission to the university. Accordingly, Samuels expressed that employers should continue to promote broad and diverse workforces and that the EEOC will be prioritizing supporting employers in making sure that their DEI initiatives are implemented in accordance with the law.
While it is still too soon to opine as to the overall impact of the Supreme Court’s decision on DEI programs nationwide, one thing is clear – challenges to DEI programs will continue and employers need to be proactive in preparing for possible challenges. Now, more than ever, it is important for employers to review their DEI policies and internal and external messaging about the organization’s DEI practices in order to avoid challenges to the organization’s DEI policies. Klehr Harrison’s Labor and Employment Practice Group will continue to monitor these and other relevant developments in the law and, as always, are available to discuss any potential impact these developments may have on your organization.
Co-authors Lee Moylan, chair, and Monica Matias, associate, are members of the labor & employment practice group at Klehr Harrison.