DEI ‘lives on’ after Supreme Court ruling, but critics see an opening
The Supreme Court building in Washington, D.C., on Feb. 1. (Kent Nishimura for the Washington Post)
The Supreme Court’s unanimous decision this week in favor of a St. Louis police sergeant was almost universally cast as a win for workers, who now have a lower bar for proving discrimination claims. But it’s also being held up by conservative activists intent on dismantling diversity, equity and inclusion initiatives, who say it will give them added firepower to quash workplace programs reserved for minorities, women and other underrepresented groups.
America First Legal, which has filed more than a dozen complaints over DEI policies at such companies as McDonald’s, Morgan Stanley and the National Football League, is already factoring the ruling into its strategy, according to general counsel Gene Hamilton. The nonprofit, founded by a former White House adviser to Donald Trump, will be “citing this decision in cases as we continue to dismantle so-called DEI programs, which almost always overtly discriminate against American citizens based on their race and sex,” he said.
But civil rights groups such as American Civil Liberties Union dismissed such interpretations as fearmongering with no grounding in law. “These scare tactics are trying to chill employers’ commitment and investment in expanding workplace opportunity,” Ming-Qi Chu, deputy director of the ACLU’s Women’s Rights Project, said in a statement following the decision. “We won’t let them.”
The split screen on Muldrow v. City of St. Louis parallels the partisan divide over DEI and affirmative action programs in business, government and academia. Proponents contend such initiatives are necessary to foster diversity and reach groups that historically have been denied advancement or locked out altogether. Critics contend they discriminate against White people and men, and are designed to advance a liberal worldview.
Tensions have only intensified since the Supreme Court struck down the use of race-conscious college admissions last June, overturning more than four decades of precedent. Soon after, Harvard’s first Black president resigned amid plagiarism allegations and her much-criticized comments about antisemitism on campus—an event that conservatives cast as a win against DEI. Moreover, legal challenges have been lobbed against multiple federal and state government diversity programs, forcing some to open their services to people of all racial backgrounds.
But the case of Jatonya Clayborn Muldrow, a Black woman and a longtime veteran of the St. Louis Police Department, drew particular attention from employment attorneys and DEI experts, who viewed it as a potential flash point in the legal battle over diversity efforts.
Muldrow sued the department in 2018, alleging that she was transferred to less prestigious role because she was a woman. Though her rank and pay did not change, she alleges the move from an investigative unit to supervising patrol officers resulted in a more haphazard schedule, less prestigious responsibilities and fewer perks. But lower courts dismissed Muldrow’s discrimination claims under Title VII of the 1964 Civil Rights Act, saying they did not amount to “significant” harm, meaning a lesser title or a loss in salary or benefits.
The Supreme Court was asked to consider whether Muldrow and other employees needed to show “significant harm” to bring a discrimination claim in a job transfer. On Wednesday, the high court ruled 9-0 that it was not necessary to show significant harm, merely “some harm.”
Legal experts largely agreed that the ruling lowered the bar for bringing workplace discrimination claims beyond lateral transfers, though views diverged about whether that lower standard would apply to claims against DEI programs. Ahead of the ruling, some DEI proponents feared the justices might well decide that plaintiffs didn’t need to show any harm, an outcome they said would leave a slew diversity programs vulnerable to litigants who merely felt the programs discriminated against them.
“This is a narrow decision, and I think for those who are watching this case closely to see how it could affect the legal landscape around DEI programs, this is not the broad decision that DEI opponents were hoping for,” said Lauren Hartz, partner at Jenner & Block and co-chair of the law firm’s DEI Protection Task Force. “I have no doubt they’ll look for ways to weaponize the decision in service of their agenda, but they’re not going to find a lot of ammunition.”
But Andrea Lucas, a commissioner on the U.S. Equal Employment Opportunity Commission, contends that DEI programs already were vulnerable to challenges and even more susceptible now that the high court has lowered the standard of harm. Lucas, who was appointed to the panel in 2020 by Trump, said that leadership development or training programs that are restricted to certain racial groups are “high-risk,” especially in light of the high court’s ruling this week.
She also predicted the ruling could make it easier to challenge a practice known as diverse hiring slates, such as the NFL’s Rooney Rule, in which employers require a certain number of job candidates to be from underrepresented backgrounds.
“If a DEI program posed problems before, and continues to, I think [the court’s decision] further solidifies the possibility that some will be viably challenged,” Lucas said. “I don’t think the ‘some harm’ standard will be the saving grace for a DEI program.”
Many attorneys toed the line, explaining that while the ruling does not represent a death knell for DEI practices, it could spark a greater number of challenges to programs previously thought safe.
“Big picture: a lot of employment decisions that may not have been considered actionable could now be considered actionable,” said Lindsay Burke, a partner at Covington and co-chair of the firm’s Employment Practice Group. “And so plaintiffs of all varieties could bring more claims if they think an employment decision is based on their protected characteristic.”
That includes employees who believe certain DEI programs discriminate against them, Burke said.
Challenges to DEI programs under the 1964 Civil Rights Act represent only a portion of those filed in recent months. Conservative activists also have challenged grant and scholarship programs using the Civil Rights Act of 1866, which prohibits discrimination in private contracts. Government programs, meanwhile, have been successfully challenged under the Constitution’s equal protection clause, resulting federal programs for minorities being opened to all races, including White people. The Muldrow decision only concerned Title VII of the 1964 Civil Rights Act, which prohibits discrimination in employment.
Kenji Yoshino, a professor at New York University and director of the school’s Meltzer Center for Diversity, Inclusion, and Belonging, said that the impact of the high court’s decision this week will take time to take shape.
“Because it’s going to take a lot of litigation to figure out what ‘some harm’ is and how different it is from ‘significant harm,’” Yoshino said.
Yet his main takeaway from the ruling: “DEI lives on.”
