DEI litigation shows hit to targeted programs in US

Discussions around improving diversity, equity and inclusion in the workplace have unfolded throughout the United States for decades, dating back to the 1960s with the establishment of equal employment laws and affirmative action.

One of the most significant legislative moves, Title VII of the Civil Rights Act of 1964, banned discrimination in public places and made employment discrimination illegal.

But recent legal challenges to DEI efforts have raised concerns about the future of equal rights in the U.S.

A new litigation tracker from the New York University School of Law, designed to help DEI supporters understand the landscape of the topic, offers a look at patterns across the country in how DEI programs and issues are being called into question in federal courts.

How the tracker works

The litigation tracker, launched in July, is part of the Advancing DEI Initiative, created by the Meltzer Center for Diversity, Inclusion and Belonging at the NYU School of Law.

The initiative was born out of a need to make sense of recent attacks on DEI in the workplace.

Christina Joseph, project director of the initiative and research scholar at the Meltzer Center, said the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, which effectively banned race-conscious admissions in higher education, served as a catalyst for challenges to workplace DEI programs.

The tracker keeps tabs on federal lawsuits that directly or indirectly impact DEI programs, separating them by circuit court. According to Joseph, most of the cases start at the top.

“We noticed that by and large, the majority of these legal challenges are starting at the federal level,” Joseph said.

Lawsuits tracked by the team challenge the legality of DEI programs. Both cases that are ongoing and those that are closed are listed.

The tracker monitors the following DEI programs or issues:

• Targeted programs

• Freedom of speech and religion

• Diversity targets

• Government programs

• Workplace discrimination

• Diversity training

• School and university admissions

• Directors’ duties

The tracker does not include litigation over Critical Race Theory or Environmental, Social and Governance litigation, given both topics usually lie outside the scope of workplace DEI discussion, according to the initiative’s website.

The team has found targeted programs are being challenged the most.

In the 5th Circuit Court of Appeals, a plaintiff is challenging Southwest Airlines’ Lanzate Travel Award Program, arguing that while it touts providing free flights to students, it limits eligibility to Hispanic students.

Cases in Indiana

While most DEI litigation cases in the U.S. 7th Circuit Court have been filed within the last 12 months, the only one to take place in Indiana was filed in the Indiana Southern District Court in April 2022. In Moses et al v. Comcast Cable Communications Management, LLC, plaintiffs argued the telecommunication company’s “Comcast RISE Small Business Program” violated section 1981, otherwise known as 42 U.S.C. § 1981 of the 1866 Civil Rights Act.

Plaintiffs, all white males with small businesses in Indiana, Pennsylvania, Tennessee and Massachusetts, stated the company’s program only offered creative, marketing and technology assistance to small businesses owned by women or people of color because they had been hit hardest by the effects of the COVID-19 pandemic. The small business owners, including Christopher Moses, who owns All American Clean LLC in Greenwood, filed a lawsuit seeking preliminary injunction to stop Comcast from operating the RISE program after stating they were ineligible to apply for the RISE grants “because of their race.”

Their motion was denied by the court because the plaintiffs failed to show that being ineligible to apply for the grants caused them irreparable harm.

Both sides eventually entered a confidential settlement, and Comcast expanded their program to include all small businesses while still putting an emphasis on diversity, inclusion and community investment.

Angel Henry, an inclusivity consultant based in Indiana, said programs aimed at supporting minority groups are not an intentional act of exclusion but a way to level the playing field for groups who often find themselves in the wings.

“The whole point of these programs is because we have been shut out,” Henry said. “We’re not trying to discriminate. We’re literally trying to correct the wrong.”

DEI education in the workplace

Consulting agencies like Henry’s and InclusiveEdge DEI Consulting, a new Hoosier-based organization, are just two companies fighting to counteract the anti-DEI movement.

“Our goal is to provide organizations with the tools and resources they need to create sustainable DEI initiatives that drive positive change,” said Julie Callahan, founder of InclusiveEdge.

The first step in InclusiveEdge’s process to help organizations develop these initiatives is to evaluate the state of DEI efforts already in place. Through that, team members can create informed, personalized goals to help the client make changes that work in the long run.

Henry coaches higher-ups on how to connect with and supervise employees who may come from different backgrounds. For her, companies must know not only how to recruit diverse workers but how to keep them.

Her work crosses state lines, which can prove difficult in places where the government has cracked down on inclusivity programs in the workplace.

But minority groups are crucial to the workflow and success of corporations, Henry said, and she’s hopeful that the tides will change soon.

“I truly believe organizations are going to realize that they’re losing money if they don’t do this and they’re going to push back on the conservatives in their states and cities that are politicizing this whole thing and coming up with laws and regulations around this,” she said.

Joseph said the team plans to broaden the initiative’s offerings to include a brief analysis of litigation cases, hoping DEI leaders and legal counsel can use the resource to better understand the issues that affect them both.

“Both sides can have a baseline knowledge to take the conversation further,” she said.

Ultimately, Joseph believes the litigation initiative and tracker is what people take from it, offering a jumping off point for viewers to get a better understanding of the landscape of the topic before setting off. •