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When Do DEI Policies Become Discriminatory?

March 21, 2024

Anthony Herman

Diversity, Equity and Inclusion (DEI) policies and programs are at the forefront of the ongoing “culture war” – with opinions about their role in the workplace largely split along ideological and party lines.

Title VII of the Civil Rights Act of 1964 prohibits employers from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” In the past few weeks, federal courts around the country have grappled with the question of whether DEI policies and DEI-influenced decisions violate Title VII:

<ul><li style="margin: 5px 0 15px 0">A white employee in Colorado claimed his former employer implemented mandatory trainings “that made sweeping negative generalizations regarding individuals who are white, and other gross generalizations about members of other racial demographics.” He claimed the trainings “paint[ed] a grim picture of the United States as a racist country permeated with discrimination.” The employer moved to dismiss these claims on the grounds that the training was neither severe nor pervasive enough to constitute a “hostile work environment” under the law. The district court, and subsequently, the 10th Circuit Court of Appeals, agreed with the employer and dismissed the case. However, in so doing, the Appellate Court cautioned that the “racial subject matter and ideological messaging” was “troubling on many levels” and that, in workplaces where a DEI policy <span style="text-decoration:underline">“is combined with ongoing stereotyping and... expectations of discriminatory treatment,”</span> DEI programs “se[t] the stage for actionable misconduct by organizations that employ them.”</li><li style="margin: 5px 0 15px 0">In the Fourth Circuit (where Maryland resides), the Court of Appeals upheld a North Carolina jury’s finding that Novant Health, Inc., terminated Plaintiff David Duvall because of his race (white), sex (male), or both. Duvall, who had no record of performance deficiencies or misconduct, successfully claimed that Novant Health fired him “merely to achieve racial and gender diversity.” The Appellate Court particularly noted Novant Health’s recent “dramatic increases” in female leadership, a decrease of white workers and leaders, and its adherence to a report presented by its Diversity and Inclusion Counsel which recommended a “3-4 percentage point increase” in black leaders over the next three years. The Court stated that the circumstances surrounding Duvall’s termination – including the DEI initiatives described above, Duvall’s sterling workplace reputation, and his replacement by three women – produced more than sufficient evidence for a reasonable jury to determine that Novant Health violated Title VII. </li><li style="margin: 5px 0 15px 0">The Supreme Court of the United States has heard oral arguments in a case that, on its face, doesn’t directly implicate DEI – the question at issue is whether is a forced lateral job transfer can constitute actionable discrimination under Title VII. However, conservative activists are closely monitoring this case. Judicial commentators expect that the Court’s decision, if favorable for the employee, could foretell a wave of “reverse discrimination” (discrimination cases brought by white employees, for example) claims around the country. Specifically, like described in the Colorado case above, most DEI-related cases fall short because aggrieved would-be plaintiffs simply have not suffered the type of injuries that would place them under Title VII’s purview. That could immediately change if the Court holds that any change in an employee’s terms, conditions, or privileges of employment could be the subject of a Title VII suit.</li></ul>

The controversy around DEI-related issues promises to keep roaring. Contact an RKW Employment Attorney to discuss your options regarding this hot button issue.

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