16753: Ruling On Anti-DEI Lawsuits.

Digiday Media’s Worklife published content about the surge of anti-DEI lawsuits, prompting companies to rethink and rejigger DEIBA+ initiatives.

 

Can’t imagine White advertising agencies and White holding companies will experience lawsuits, as DEIBA+ heat shields are performative PR fueled by crumby diversity budgets. Plus, such propagandistic maneuvers rarely impact industry exclusivity—ie, in Adland, White dominance perpetuates, progresses, and prevails.

 

Why anti-DEI lawsuits are piling up this year

 

By Hailey Mensik

 

Corporate DEI programs are under fire a year after the U.S. Supreme Court overturned affirmative action.

 

While that ruling didn’t extend to the public sector, it has still spurred some employers to consider dismantling their programs or reassess their initiatives. A key concern is the new legal risks they face, which include anti-DEI lawsuits targeting diversity training, diversity targets and workplace discrimination.

 

More than a third of business executives said their organizations are facing uncertainty regarding how to move forward with their DEI programming in a legally compliant way, according to a report out earlier this year from legal firm Littler. And one in three executives said their organizations do not have clear plans and goals in place relating to DEI, that survey found.

 

So far this year, at least 37 federal lawsuits targeting DEI programming have been filed, according to a tracker compiled by the NYU School of Law’s Metzler Center. Last year 40 were filed. In 2022, 15 were filed, and in 2021, 11 were filed.

 

The list isn’t exhaustive, though it tracks federal cases that “directly or indirectly affect DEI in the workplace,” said David Glasglow, executive director of Diversity, Inclusion and Belonging at the Metzler Center.

 

Some of these cases are being called reverse discrimination lawsuits, where typically white men sue over claims hiring decisions were made based on protected characteristics like race, age and gender and ultimately did not favor them.

 

Vaughn vs. CBS Broadcasting is one recent case filed on July 1. The plaintiff, a heterosexual white male news anchor, alleges he was replaced with a “younger minority news anchor” because of his race, sex, sexual orientation and age. The plaintiff alleges his removal was part of a broader effort to meet internal representation goals.

 

That case is currently ongoing, like many others, though some have been decided, like Duvall vs. Novant Health. In that case, the plaintiff, a white man, also brought a discrimination claim against his former employer and said he was fired to advance his employer’s diversity goals.

 

A jury found race and or sex were motivating factors leading to the plaintiff’s firing and awarded him punitive damages of $10 million, which were later reduced to $300,000. On appeal, the verdict was upheld though punitive damages were set aside.

 

Such reverse discrimination lawsuits vary greatly based on individual circumstances and what evidence is available to explain how a hiring decision was made. Accordingly, employment law experts expect DEI-based hiring programs to become more covert.

 

“This is relatively clear enough that you know, employers are certainly eliminating any overt programs that indicate that there will be a hiring preference for minorities, that’s probably the biggest danger in terms of potential litigation,” said Mark Kluger, partner at employment law firm Kluger Healey.

 

“Any sort of articulated program that favors hiring on diversity criteria, those programs are not going to continue, at least not overtly,” Kluger said.

 

Other types of lawsuits are targeting diversity training. In Arsenault vs. HP, the plaintiff, a white man, alleges he was subject to a “shaming session” after expressing his negative opinions on his employer’s DEI training which led to retaliation and his firing. That case is ongoing.

 

According to Glasglow, most forms of DEI programming remain perfectly legal despite the increase in lawsuits, he said.

 

“A DEI program involves legal risk when it meets what we call the three Ps – it confers a preference on a legally protected group with respect to a palpable benefit,” he said. “For example, a diversity fellowship program where the only people eligible to apply to the program are those who belong to a particular racial group would be legally risky. Whereas conducting implicit bias training would not.”

 

“I would also emphasize that there are risks involved in not doing DEI work. Organizations that over-react to the anti-DEI lawsuits by watering down or abandoning their DEI initiatives will increase their risk of being sued by traditional discrimination plaintiffs, such as people of color, women and LGBTQ individuals,” he said.

 

Rather than completely dismantling programs companies should more thoroughly assess their programs for legal compliance.

 

“The companies that really do care about diversity and Inclusion and equity, they’re looking to just reshape their programs in a way that avoids lawsuits, but also really more importantly aligns with their core values, their mission,” said Peter Rahbar, an employment attorney at the Rahbar Group.

 

“Companies will not stop caring about diversity and equity, and inclusion. They’ll just find new ways to address those topics in a way that doesn’t draw scrutiny,” Rahbar said.