Days after the US supreme court ruled affirmative action in college admissions unconstitutional, the legal activist behind the big win for conservatives called the ruling “the end of the beginning”.
“This issue of race and ethnicity in our public lives is not going to go away,” Edward Blum told the New York Times in July 2023. “All of these preferences, whether it’s in the employment arena, contracting arena, internships – all of that I think will be energized by this supreme court opinion. And we’re blessed to have this supreme court opinion.”
True to Blum’s word, conservative groups have unleashed a flood of lawsuits since the ruling with the ultimate goal of dismantling diversity, equity and inclusion (DEI) policies in the American workplace. In the year since the supreme court’s affirmative action decision, 68 lawsuits that call DEI into question have been filed.
This legal fight looks to be much more complicated than efforts to overturn affirmative action. DEI encompasses many different policies and practices designed to make workplaces more equitable, from hiring diverse candidates to preventing bias in the workplace. Many DEI policies started as measures to protect marginalized workers from discrimination and strengthening their positions in the workplace through initiatives like mentorship programs and de-bias training. But conservatives against DEI see this as the best moment to get DEI out of the American workplace.
Legal scholars with NYU School of Law’s Meltzer Center for Diversity, Inclusion and Belonging have been tracking anti-DEI lawsuits and recently launched a database of more than 100 lawsuits that could change DEI.
The Guardian spoke with David Glasgow, executive director of the Meltzer center, who broke down what the battle against DEI is starting to look like.
What is DEI?
Because DEI is a pretty broad term, breaking down the acronym can be helpful, Glasgow said.
“Diversity” covers the policies that aim to diversify a workforce, like efforts in hiring and promotion. “Equity” is about creating fairness within an existing workforce, like access to mentorship or employee benefits. And “inclusion” covers workplace culture, creating an environment where employees feel a sense of belonging at work.
DEI has been redefined by conservatives, who often use it as a way to mock any issue that has to deal with race or equity. But Glasgow points out DEI is not only focused on race-conscious efforts. It includes gender, sexual orientation, religion and disability, among other categories protected from discrimination by federal employment law.
“DEI includes a whole bunch of different dimensions, of race, gender and the like. It just happens, though, that a lot of litigation is more focused on race,” Glasgow said.
From colleges to the workplace
The supreme court’s affirmative action decision opened the floodgates for what has been a heavy stream of lawsuits attacking DEI in the workplace.
Even though the affirmative action ruling applied only to students’ admission to colleges, the decision signaled that the supreme court, which has a 6-3 conservative majority, believes it’s wrong to classify people by race, regardless of the reason why a classification is used.
In her scathing dissent, Justice Sonia Sotomayor called this view “a superficial rule of colorblindness as a constitutional principle in an endemically segregated society”. In other words, “not seeing” race does not mean racism does not exist.
But the majority’s opinion “unleashed hope on the anti-DEI side that they could make significant progress through the courts to change the law”, Glasgow said. If conservative activists can overturn affirmative action, what can they do about the workplace?
A flood of anti-DEI lawsuits
Since the affirmative action ruling last summer, the Meltzer center has identified 68 new lawsuits that target several types of policies of DEI.
Many of the lawsuits focus on targeted programs – scholarships, grants, fellowships or internships that are meant for specific groups. For example, the American Alliance for Equal Rights, headed by Blum of the affirmative-action cases, filed a lawsuit against Fearless Fund, an investment fund focused on funding Black women and other business founders from marginalized groups.
Other lawsuits target government programs, many of which have requirements specifying a number of local board members be from underrepresented groups. Many also attack required diversity training.
Another strain of lawsuits are workplace discrimination suits where a plaintiff, from a dominant or majority group, sues a company for “reverse discrimination”. In February, a white freelance writer sued CBS and parent company Paramount, arguing that he was denied a staff writer position on the Seal Team TV series because of the company’s diversity goals.
“The goal of these organizations is to file as many lawsuits as possible, get as many cases pushed through the courts … to try to get the supreme court to review it and reach a decision,” Glasgow said. “They realize it’s a 6-3 conservative supermajority supreme court right now, but they don’t know how long they are going to have this really friendly conservative court.”
Upending precedent
Many of these lawsuits are trying to give the supreme court a chance to say that DEI policies violate two civil rights laws: one made after the civil war, and the other after the civil rights movement.
The first is section 1981 of the Civil Rights Act of 1866, a broad law that prohibits racial discrimination when making and enforcing contracts. The second is Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating on the basis of race, color, sex, religion or national origin.
Both laws were created as an attempt to prevent economic exclusion of Black Americans, first after the end of slavery and then after the end of racial segregation. But now, conservative legal activists are saying white Americans are the ones facing economic exclusion.
This is not the first time in history that DEI in the workplace has been challenged. Glasgow notes there are a handful of supreme court cases from the 70s and 80s in which the court upheld forms of affirmative action in the workplace.
“Those are still on the books, technically,” he said, and the decisions offer a layer of protection to DEI policies – at least for now. The appointment of a conservative-majority supreme court gave groups against affirmative action an opportunity to set a new precedent that has now made affirmative action illegal.
“The anti-DEI were so focused on eliminating affirmative action education, they wanted to do one thing at a time. They wanted to get that precedent on the books and then turn their attention to corporate DEI,” Glasgow said.
Anti-DEI activists have already seen some of their legislation get shut down by federal courts, including Florida’s “Stop Woke” law that banned companies from requiring diversity training. An appeals court deemed the law a violation of the first amendment.
But that hasn’t stopped companies from backtracking on their DEI programs out of fear of the legal landscape.
“My suspicion … is that a lot of the organizations that are retreating from DEI right now are the same organizations that weren’t doing anything about DEI until George Floyd and then jumped on the bandwagon and did it because they were feeling pressure from that direction,” Glasgow said. “Now that they’re feeling pressure in the other direction, they’re backing off.”
The end of DEI?
Glasgow and other legal scholars at the Meltzer center say that many private companies are still invested in DEI, even amid the flurry of lawsuits. But the legal landscape has changed, even if it will take years for the supreme court to take on a DEI case.
“I’ve had general counsel of companies say directly to me that one of the biggest challenges right now is to make the kinds of adjustments to DEI programs that are necessary within the current landscape, just to protect a company from a risk standpoint,” Glasgow said. “While making sure that employees of the organization realize that the company is still just as strongly committed to DEI as it was before.”
It’s a stark contrast to 2020, when Black Lives Matter protests spurred companies to promote DEI policies in the name of racial justice. But Glasgow says companies should not get rid of DEI. Doing so actually makes them more liable to discrimination claims from underrepresented groups.
“It’s not a matter of deciding to get rid as the easiest pathway to reducing risk. It’s more about how we thread the needle in a way that conforms with the new legal landscape we’re all living, but that doesn’t shoot ourselves in the foot,” he said.
