You don’t need DEI programs to have diverse workplaces, say employment lawyers
Having DEI programs could come with litigation risks and press coverage that might result in lost customers, even if the program violates no laws, say lawyers interviewed by the ABA Journal. For companies and nonprofits planning to keep or add such programs, they advise various compliance practices. (Photo from Shutterstock)
Leading up to his election and immediately thereafter, President Donald Trump promised to pursue and rid the country of diversity, equity and inclusion programs not just in the public but also in the private sphere.
Jonathan Pollard, a Florida employment lawyer who represents plaintiffs, expects that the Department of Justice will “absolutely” pursue large companies who kept DEI programs in place. But he notes that the initiatives are not necessary to address discrimination and equal rights in their hiring and work practices.
“The reality here is that everybody just needs to follow the actual law,” says Pollard, who practices in Fort Lauderdale.
He adds that companies need to conduct thorough audits to investigate whether they have problems with discrimination in hiring or promotions and whether they retaliate against individuals who report discrimination. If they find “real instances of discrimination,” companies should “fire the bad actors.”
“If you never hire Black folks or Black folks are always leaving, you ask yourself why,” Pollard says. “You don’t need big, performative preachy DEI initiatives. That’s just branding and political theater. Nobody needs it. Follow the law.”
Having DEI programs could come with litigation risks and press coverage that might result in lost customers, even if the program violates no laws, say lawyers interviewed by the ABA Journal. For companies and nonprofits planning to keep or add such programs, they advise various compliance practices.
Jonathan Pollard is a Florida employment lawyer who represents plaintiffs. (Photo courtesy of Pollard)
Presidential promises
A Jan. 22 fact sheet, published two days after Trump took office, stated that the administration would be encouraging the private sector to end illegal DEI discrimination and preferences.
Also in January, Andrea Lucas, the acting chair of the U.S. Equal Employment Opportunity Commission, said her “priorities will include rooting out unlawful DEI-motivated race and sex discrimination.”
And in a memo dated Feb. 5, Attorney General Pam Bondi directed the Justice Department’s Civil Rights Division to “investigate, eliminate and penalize” colleges and universities receiving federal funds and private companies that have “illegal” DEI discrimination and preferences.
It instructs the Civil Rights Division and the Office of Legal Policy to jointly submit a report by March 1 with recommendations for enforcing federal civil rights laws and taking other appropriate measures to help end to DEI and DEIA programs. The report is to include a list of the companies that are the most “egregious” offenders.
Vanessa Roberts Avery, the former U.S. attorney for the District of Connecticut, notes that Bondi’s Feb. 5 memo raises the possibility of criminal investigations and prosecutions.
“The source of authority for a criminal investigation is unclear,” says Avery, now a partner at McCarter & English. She adds that criminal authority in the civil rights arena is generally directed to “particularly egregious conduct, such as federal hate crimes, and requires proving criminal intent.”
Regarding investigations, Avery says the department is likely to pursue nonprofit and other organizations that receive federal grants.
Defending DEI
Christina Lewis, a partner in the employment practice of Goodwin Procter, predicts there will be an increase in “activist organizations” filing suits. In June 2023, the Supreme Court struck down the use of race in college admissions. That case was initiated by Students for Fair Admissions, a nonprofit organization.
“Depending on a company’s level of risk tolerance, it may be worth reviewing existing policies” to ensure they can’t be interpreted as setting quotas or metrics in hiring or promotion, she adds.
Also, Lewis suggests that companies review their “internal and external communications” to ensure “there is no exclusionary aspect to their DEI policies.”
Programs that could be seen as an illegal quota or preference system would likely attract the most attention, but it’s unlikely that voluntary offerings, like celebrating Chinese New Year, Black History Month or Hispanic Heritage Month, would be considered problematic, says Kenneth Rosenberg, a partner in the Morristown, New Jersey, office of Fox Rothschild.
He advises employers to revise their DEI programs so that anyone who wants to participate can.
“If the goal of a business or firm was to increase diversity, then look for opportunities to increase the applicant pipeline so that the number of qualified applicants from the desired groups apply,” Rosenberg says. “Hire the most qualified applicant for the job but consider a candidate’s total pack of attributes in making this determination.”
Vanessa Roberts Avery is the former U.S. attorney for the District of Connecticut. (Photo courtesy of McCarter & English)
‘Egregious’ offenders
Prominent companies like Target and Bank of America already have rolled back their DEI programs, while others, such as Costco and JP MorganChase, have kept programs in place.
Tyler Evans, a partner specializing in government contracts at Steptoe, expects the Justice Department to start enforcement efforts with public, well-publicized letters to companies, requesting information about their DEI practices.
He adds that tying executive compensation to numeric diversity goals could be questioned by the government or in individual lawsuits.
Companies reviewing and changing their DEI policies should make sure that employees, and particularly those who implement the DEI programs, receive updated training, says Ann-Marie Luciano. An attorney in the Washington, D.C., office of Cozen O’Connor, she advises companies facing litigation and government investigations.
Also, Luciano advises that companies follow state attorneys general because some of them are investigating and litigating company DEI policies under both federal and state laws. In February, the Missouri attorney general sued Starbucks under federal and state law for violating anti-discrimination statutes.
In response to the lawsuit, Starbucks said its programs and benefits are “open to everyone and lawful.”
“Our hiring practices are inclusive, fair and competitive and designed to ensure the strongest candidate for every job every time,” the company stated, according to the Washington Post.
Title VII and the Supreme Court
Lawyers interviewed by the Journal say the Justice Department will likely pursue civil cases against companies using Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex or national origin. Title VII also has been determined to apply to sexual orientation and gender identity. While traditionally used to protect marginalized communities, the statute is expected to be used to apply to DEI programs that discriminate against white people, lawyers who advise companies say.
But efforts to eliminate DEI practices have faced legal hurdles. On Feb. 21, a federal judge in Baltimore granted a preliminary nationwide injunction halting portions of the Trump administration’s efforts to eliminate DEI. The judge specifically halted terminations of DEI-related contracts and requiring that government contractors certify that they do not engage in DEI practices that violate antidiscrimination laws.
The U.S. Supreme Court is set to rule on an employment discrimination case this spring that could bolster the Justice Department’s efforts. The case, Ames v. Ohio Department of Youth Services, involves an Ohio woman, Marlean Ames, who contends that she lost out on a promotion and was then demoted because she is straight.
The district court granted summary judgment to the state holding that Ames lacked evidence of “background circumstances” necessary to establishing her prima facie case for her claim based on sexual orientation, and she lacked evidence of pretext for purposes of her sex-discrimination claim. The Cincinnati-based U.S. Court of Appeals for the 6th Circuit affirmed.
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