Diversity, Equity, and Inclusion (DEI) Programs May Invite “Reverse Discrimination” Lawsuits

Article here. Excerpt:

'Many companies have announced specific hiring goals in response to heightened awareness of racial and gender inequalities. But some of those goals are now being challenged as impermissible “reverse discrimination” as white male applicants are rejected in favor of persons of color or women.

Recent lawsuits have highlighted how Diversity, Equity, and Inclusion (DEI) programs may conflict with federal or state EEO (equal employment opportunity) laws. A federal jury in North Carolina awarded $10 million to a white male executive of Novant Health who claimed he lost his job due to efforts to diversify top leadership positions. Similarly, an in-house lawyer with Electrolux sued, claiming he was denied a promotion to General Counsel due to a diversity initiative with an expressed preference for sex/gender as a “distinguishing and beneficial characteristic.” And a white male based his reverse discrimination claim against the city of Springfield, Illinois, on the Mayor’s statement that hiring a black colleague exemplified his administration “moving towards reflecting the city demographics.”

The Supreme Court and the Equal Employment Opportunity Commission have approved voluntary affirmative action efforts by private employers under limited circumstances. However, to comply with federal anti-discrimination laws, an employer’s voluntary affirmative action policy must meet all three requirements established in two Supreme Court cases: United Steelworkers of America, AFL-CIO-CLC v. Weber (1979), and Johnson v. Transportation Agency (1987). Specifically, affirmative action: (1) must seek to remedy “conspicuous racial [or gender] imbalances in traditionally segregated job categories;” (2) cannot “unnecessarily trammel the interests of white [or male] employees [or applicants]” by, for example, barring whites or males from employment; establishing quotas or inflexible goals; or requiring the discharge or layoff of white or male employees; and (3) must be a temporary measure designed to correct a manifest imbalance, rather than to maintain a particular racial or gender balance.'