Could Employer DEIB Initiatives Face Legal Challenges?

By Amelia J. Holstrom - Skoler Abbott

February 27, 2024

Last June, the Supreme Court of the United States (SCOTUS) decided Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. The decision essentially eliminates the use of affirmative action in college admissions, but is not applicable to workplace Diversity, Equity, Inclusion, and Belonging (DEIB). So, why we are writing about a case regarding college admissions on a blog about employment law? The decision has already encouraged challenges to and discussion about employer DEIB initiatives.

In fact, just a few weeks ago, billionaire investor Mark Cuban and Equal Employment Opportunity Commission (EEOC) Commissioner Andrea Lucas squared off on X (formerly known as Twitter) regarding a post in which Mr. Cuban indicated: “I’ve never hired anyone based exclusively on race, gender, religion. I only ever hire the person that will put my business in the best position to succeed.  And yes, race and gender can be part of the equation. I view diversity as a competitive advantage.” In her reply, Commissioner Lucas told Mr. Cuban that he was “dead wrong on black-letter Title VII law.” She went on to state that race/sex “can’t even be a ‘motivating factor’ –nor a plus factor, tie-breaker, or topping point” in employment-related decisions.

This is not the first dispute over an employer’s DEIB initiative since June either.  There has been a lot of activity, including lawsuits filed against at least two law firms related to their DEIB programs, and a communication from Senator Tom Collins to 51 U.S. law firms warning them that “they and their clients may be violating [federal civil rights laws] with Diversity, Equity, and Inclusion (DEI) programs, if those programs treat people differently based on race,” which you can read here.

Many employers have DEIB programs and employee resource groups meant to promote the representation and participation of employees of all backgrounds in the workplace. When implementing those programs, employers cannot, intentionally or unintentionally, discriminate against any employee, or group of employees, based on any protected characteristic, including race and sex.  For example, an employer cannot consider only applicants of a particular race or color when making hiring decisions to increase their diversity statistics, nor can they hold open certain positions (called quotas) for persons who fall into specific protected classes.

Employers can, however, implement best practices for making all employees feel welcome, respected, and valued in the workplace; adopt policies and procedures that ensure equity in the workplace; provide training to employees about implicit bias; post jobs in a number of location to ensure that they are seen by the largest number of qualified applicants possible; and ensure that their hiring and employment practices provide an equal opportunity for all applicants and employees, so long as they do not result in discrimination.  The challenge employers face is how to implement these initiatives without violating anti-discrimination laws.

Given the uptick in challenges to workplace DEIB programs since the Harvard College decision, employers with DEIB programs may be asking themselves: could I be next? But the better question is: would my DEIB program survive a legal challenge?  To answer that question, employers need to become familiar with how anti-discrimination laws apply to workplace DEIB programs and ensure that their program is in compliance with applicable state and federal anti-discrimination laws.  Failure to do so could result in a costly lawsuit.

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