{"id":6531,"date":"2024-01-04T01:17:00","date_gmt":"2024-01-04T01:17:00","guid":{"rendered":"https:\/\/www.brightmine.com\/us\/?post_type=resources&p=6531"},"modified":"2026-09-25T10:41:02","modified_gmt":"2026-09-25T15:41:02","slug":"dei-legal-issues-2024","status":"publish","type":"resources","link":"https:\/\/www.brightmine.com\/us\/resources\/hr-strategy\/inclusion-belonging\/dei-legal-issues-2024\/","title":{"rendered":"How employers can respond to new DEI legal issues"},"content":{"rendered":"\n
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by Natasha K. A. Wiebusch<\/strong>, Marketing Content Manager at Brightmine, and Emily Scace<\/strong>, Senior Legal Editor at Brightmine<\/p>\n\n\n\n

June 2023 saw the end of yet another longstanding legal precedent in the storied history of our nation’s highest court. In a split decision, the Supreme Court abruptly terminated more than half a century of affirmative action policy in the college admissions process in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College<\/a>.<\/p>\n\n\n\n

The decision focused on higher education, however, as predicted in our previous coverage<\/a>, its impact did not stop at campus boundaries. The private sector is now seeing a new generation of lawsuits and legislation aimed at blocking diversity, equity and inclusion (DEI)<\/a> efforts.<\/p>\n\n\n\n

As a result, corporate DEI has reached an inflection point. To recommit to DEI, employers must now search for not only strategic opportunities, but also compliance landmines. The real question is, how?<\/p>\n\n\n\n

It’s not all bluffing and bravado<\/h2>\n\n\n\n

Since the Harvard decision, legislators like Tom Cotton<\/a> have threatened private sector employers over their DEI programs. Because the decision does not formally create new limitations for employer programs, many thought these threats were more or less empty.<\/p>\n\n\n\n

In reality, the decision has reinvigorated anti-DEI efforts in ways that have already impacted private employers. To navigate this new environment, employers should be aware of key litigation and other compliance issues.<\/p>\n\n\n\n

DEI program litigation<\/h3>\n\n\n\n

The most active arena for anti-DEI efforts remains in the courts. Both leading up to and following the Harvard decision, various anti-DEI groups filed lawsuits against private sector employers alleging certain DEI programs violated Title VII, the Constitution and other relevant laws.<\/p>\n\n\n\n

The following table lists current notable lawsuits employers should be aware of:<\/p>\n\n\n\n

Notable pending lawsuits*<\/h4>\n\n\n\n
Case name<\/th>Jurisdiction<\/th>Summary<\/th><\/tr><\/thead>
Am. Alliance for Equal Rights v. Fearless Fund Mgmt.<\/td>Northern District of Georgia (on appeal with the 11th Circuit)<\/td>A Black women-owned venture capital firm has a charitable program that provides grants to Black female entrepreneurs. The issue is whether the program, by providing grants only to Black women, violates Section 1981 of the Civil Rights Act of 1866.<\/td><\/tr>
Rogers v. Compass Group USA, Inc.<\/td>Southern District of California<\/td>Employee was terminated after requesting, as a religious accommodation<\/a>, to not administer a diversity program in which only women and people of color could participate. The issue is whether the company violated Title VII and California Fair Employment and Housing Act<\/a>, when it terminated the employee.<\/td><\/tr>
Harker v. Meta Platforms, Inc.<\/td>Southern District of New York<\/td>A Meta employee alleges Meta’s diversity program for BIPOC candidates, Double the Line, violates Title VII and other civil rights laws. The employee also claims they were retaliated against after questioning the qualifications of a co-worker who was hired through the program.<\/td><\/tr>
Craig v. Target Corp.<\/td>Middle District of Florida (on appeal with the 11th Circuit)<\/td>Target’s stock price plummeted after the company received significant backlash for LGBTQ+ themed merchandise<\/a>. This securities fraud lawsuit accuses Target of making false and misleading statements about the company’s ESG and DEI initiatives in their required disclosures to the Securities Exchange Commission. Specifically, the suit alleges that Target misstated its oversight of “social and political risks,” which resulted in damage to the company’s stock price.<\/td><\/tr>
Suhr v. Dietrich et al.<\/td>Eastern District of Wisconsin<\/td>The State Bar of Wisconsin funds a DEI clerkship program for first-year law students from “backgrounds that have been historically excluded from the legal field” with mandatory bar dues. A bar member alleges the program is unconstitutional, and that funding it with their mandatory dues violates their First Amendment rights.<\/td><\/tr>
Honeyfund.com Inc., et al. vs. Desantis et al.<\/td>Northern District of Florida<\/td>The Stop Wrongs to Our Kids and Employees (WOKE) Act<\/a> prohibits private employers from covering certain DEI topics in employee trainings. The issue is whether the law violates the First Amendment.<\/td><\/tr><\/tbody><\/table>
*Status as of January 5, 2024<\/figcaption><\/figure>\n\n\n\n

By watching this and other DEI litigation, employers can identify red flags, such as program criteria and accommodation requirements, and respond proactively.<\/p>\n\n\n\n

Employers should also take note that in the case of DEI programs, many companies have fought back – successfully.<\/p>\n\n\n\n

Most recently, a federal court dismissed<\/a> a lawsuit challenging Pfizer’s diversity fellowship program on the grounds that the plaintiffs lacked legal standing, as the plaintiffs would not name the individuals harmed by the fellowship’s eligibility criteria.<\/p>\n\n\n\n

Another set of lawsuits against legal giants Perkins Coie and Morrison Foerster for their DEI-focused fellowship programs were voluntarily dismissed after both firms adjusted the programs’ eligibility requirements to allow all first-year students to apply.<\/p>\n\n\n\n

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Want to make smarter, more-informed decisions?<\/h2>\n\n\n\n
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Learn more<\/a><\/div>\n<\/div>\n<\/div>\n\n\n\n

EEOC: Proceed with caution<\/h3>\n\n\n\n

Employers should also be aware of where the Equal Employment Opportunity Commission (EEOC) stands, as the majority of recent DEI program lawsuits allege violations of Title VII. At least three commissioners have made their positions known.<\/p>\n\n\n\n

The day of the Harvard decision, EEOC Chair Charlotte A. Burrows released an official statement<\/a> signaling the EEOC’s position on the legality of DEI programs in the private sector.<\/p>\n\n\n\n

In addition to emphasizing that the decision did not apply to employers, Commissioner Burrows stated, “It remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”<\/p>\n\n\n\n

“It remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”<\/p>EEOC Chair Charlotte Burrow<\/cite><\/blockquote><\/figure>\n\n\n\n

EEOC Vice Chair Jocelyn Samuels echoed<\/a> Burrows’ position, encouraging employers to maintain their commitment to DEI. She noted that being race-conscious does not inevitably lead to illegal race discrimination but encouraged employers to “start by embracing race-neutral DEIA measures.” She also offered resources that identify examples of EEOC compliant race-neutral DEI practices.<\/p>\n\n\n\n

EEOC Commissioner Andrea Lucas took a more cautionary approach, warning employers<\/a> that “poorly structured voluntary diversity programs pose both legal and practical risks for companies.” She reminded employers that courts have never supported employers “taking race-conscious employment actions based on interests in workforce diversity” and encouraged them to review their DEI programs to ensure legal compliance.<\/p>\n\n\n\n

Commissioner Lucas also referenced Muldrow v. St. Louis, a case currently before the Supreme Court that could expand the meaning of “adverse action” under Title VII. According to Lucas, the outcome of the case “could have further ramifications” for corporate diversity programs and initiatives, such as:<\/p>\n\n\n\n