What Is DEI and How is It Related to Reverse Discrimination?

Once embraced as a way to support people from varying backgrounds and give them resources to thrive in the workplace and higher education, diversity, equity, and inclusion (DEI) programs are losing their luster as many claim they are inequitable in their very nature. The programs are facing backlash from critics who view them as a form of reverse discrimination and a significant number of legislatures are taking action against them. At least 10 states have implemented restrictions on DEI (Alabama, Florida, Idaho, Indiana, North Carolina, North Dakota, Tennessee, Texas, Utah and Wyoming) and 19 other states have proposed similar policies. Some of the bills ban state funds from being used for diversity-based programs and offices on university campuses. Others prohibit diversity offices at colleges altogether, and some go so far as to restrict diversity training and programs in private workplaces. With this severe pendulum swing, it’s important to look at the history of DEI programs and its fate moving forward.

What is DEI?

DEI was born out of the desire to create a workplace environment where all can flourish. It is comprised of three values that help meet the needs of people of varying groups and backgrounds:

Diversity - Refers to differences, such as race, age, ethnicity, ability and neurodiversity, gender, religion, and sexual orientation.

Equity - Is the fair treatment for all people taking each person’s unique circumstances into account and adjusting treatment toward them to achieve an equal end result.

Inclusion - Means to create a culture where everyone is respected and their voices are heard.

The origins of DEI date back to the Civil Rights Act of 1964. That act:

• Prohibits employment discrimination based on race, religion, sex, color, and national origin

• Outlaws segregation in public places

• Created the Equal Employment Opportunity Commission (EEOC)

When employees started filing lawsuits with the EEOC, organizations began to incorporate diversity into their business strategies. Around this same time, President Kennedy signed an executive order creating affirmative action, which mandated that all federal contractors treat job applicants and existing employees equally based on race, color, religion, and sex. Over the years that followed, however, diversity initiatives lost momentum, particularly after President Reagan said that organizations should internally address discrimination. The murder of George Floyd renewed its push, and in the last few years, we saw the creation of DEI-specific roles within companies and a strong interest in DEI initiatives. But these positions have been on the chopping block the past year. The cutting of roles and enacting anti-DEI policies put the fate of DEI up in the air, despite 56% of adults saying these programs are a good thing.

Is DEI Reverse Discrimination?

Many lawmakers, corporate leaders, and activists allege DEI is unfair, anti-American, and even racist. Their argument is that such programs equate to affirmative action and racial preferences and are a form of reverse discrimination, meaning discrimination affecting members of a majority rather than a minority. Claims of reverse discrimination in the workplace could include hiring or promoting someone solely based on their gender or sexual orientation or only hiring people over a certain age.

This “reverse discrimination” argument has found some support from the recent Supreme Court decision on affirmative action that effectively ended race-conscious admission practices in higher education, eroding 40 years of precedent. Additionally, a recent case addressing “antiracism” helps to strengthen DEI critics’ claims. In De Piero v. Pennsylvania State University, an employee alleged that DEI initiatives created a hostile work environment. The court allowed the claim to move forward and provided guidance on when these initiatives support such a claim:

• The employee suffered discrimination because of their membership in a protected class.

• The discrimination/harassment was so severe and pervasive to detrimentally affect them.

• A reasonable person of the employee’s race would also be detrimentally affected in similar circumstances.

Another recent decision may prime Title VII for U.S. Supreme Court review. A U.S. Sixth Circuit Court of Appeals case calls into question the type of proof required when a member of a majority class claims discrimination. The decision highlights whether plaintiffs from majority groups need to meet a higher evidentiary standard to support discrimination claims than those of minority groups. Because the Supreme Court has never given guidance on this issue there has been inconsistency in application with some courts requiring heighted evidentiary standards for plaintiffs from majority groups in reverse discrimination claims, while others not. A Supreme Court decision could greatly impact decisions in this area and give rise to reverse discrimination claims.

Looking Forward

Given the shift in views of DEI, along with recent court decisions, employers should review their policies, initiatives, actions, and goals to avoid the risk of legal action.

Do not hesitate to contact us at 973.707.3322 or LFarber@LFarberLaw.com.

The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.