Over the past month, more organizations have scaled back their DEI efforts in response to coordinated, public attacks on DEI, causing renewed conversation on how these efforts should be defined. Read more about these decisions and other DEI news, court cases, and developments in this month’s edition of the Pulse.
DEI In the News
Corporate boards brace for DEI backlash
Axios, Aug. 22
Jack Daniel’s maker says it will cancel its DEI goals
Bloomberg, Aug. 22
University of Kentucky eliminates Office of Institutional Diversity amid DEI criticisms
Louisville Courier-Journal, Aug. 21
Is it time to rename diversity, equity and inclusion (DEI)?
Forbes, Aug. 21
ABA suggests broadening DEI language beyond race, ethnicity
Bloomberg Law, Aug. 20
Harley-Davidson hits brakes on DEI
The Hill, Aug. 20
‘DEI Hires’ don’t lower the bar. We raise it.
Bloomberg, Aug. 20
Harley Davidson, John Deere, and Tractor Supply axed some DEI efforts after a conservative influencer’s campaign Fortune, Aug. 20
Here are the most common anti-DEI legal cases right now– and what you need to know about them
Inc. Magazine, Aug. 15
These CEOs still have chief diversity officers. Here’s why.
Inc. Magazine, Aug. 15
DEI litigation shows hit to targeted programs in U.S.
The Indiana Lawyer Aug. 15
Wells Fargo held phone DEI job interviews, lawsuit claims. The case will now move forward
Yahoo Finance, Aug. 15
DEI trainings spark workplace lawsuits
Oklahoma Council Public Affairs, Aug. 12
Top legal hurdles facing schools in 2024-2025
K-12 Dive, Aug. 12
Does DEI training discriminate against White people? Courts will decide
The Washington Post, Aug. 10
Senate Democrats tout their staff diversity amid GOP attacks on DEI
The Hill, July 31
Corporate America braces for DEI’s death if Trump wins election
Bloomberg Law, July 31
Harris’ political ascent makes her the latest target of DEI insults
NBC News, July 31
Wells Fargo’s fake job interviews spawn real lawsuit
Inc. Magazine, July 30
OPINION: The real work of equity and inclusion is difficult, messy and absolutely necessary
The Hechinger Report, July 29
Are your company’s original DEI efforts suddenly at a standstill?
FastCompany, July 29
DEI Post-Supreme Court: How 1 founder holds the line in a new litigious landscape
INC. Magazine, July 29
Remarks by President Biden commemorating the 60th anniversary of the Civil Rights Act
The White House, July 29
DEI In the Courts
Do No Harm v. American Association of University Women
On June 20, Do No Harm filed a complaint against the American Association of University Women (AAUW), claiming that the AAUW is actively violating Section 1981 by providing “Focus Group Professions Fellowships” exclusively to “women from ethnic minority groups historically underrepresented in certain fields within the United States: Black or African American, Hispanic or Latino/a, American Indian or Alaskan Native, Asian, and Native Hawaiian or Other Pacific Islander.” Do No Harm is seeking a court order to temporarily prevent AAUW from closing the fellowship applications and to permanently stop AAUW from considering race when selecting grant recipients.
- On Aug. 2, AAUW opposed the plaintiff’s request for a temporary restraining order, arguing that Do No Harm has no standing, the fellowship program is protected by the First Amendment, and it is a valid affirmative action program.
Wood v. Red Hat, Inc.
On May 8, America First filed a lawsuit on Wood’s behalf after first filing a complaint with the U.S. Equal Employment Opportunity Commission. Wood, a former senior director at enterprise software company Red Hat, alleged he was fired in violation of Title VII of the Civil Rights Act for being White and male after he spoke out against the company’s push to hire based on race and gender. The plaintiff “felt that he was being targeted, marked, and labeled as an undesirable employee for voicing his opinions in opposition to Red Hat’s DEI policies,” attorneys for the plaintiff said in their complaint. The plaintiff was fired along with 21 additional people, all of whom (with one exception) were White and male, after company leadership announced a goal to reach 30% female and 30% minority workers by 2028, according to the complaint.
- On July 29, the defendant requested the court to require arbitration and pause the case, claiming that the dispute falls under a valid arbitration agreement between the parties.
Netzel v. American Express Company
On Aug. 23, 2022, a group of former American Express employees filed a lawsuit claiming that the company’s diversity initiatives discriminated against white employees and that the company retaliated against them for complaining, in violation of Title VII and Section 1981. The district court granted American Express’s motion to compel arbitration, prompting the plaintiffs to appeal to the Ninth Circuit. They argued that arbitration should not be compelled because they are seeking “public injunctive relief” for alleged “racial discrimination . . . that specifically harms the general public,” a right they assert is non-waivable under California law.
- On July 22, the Ninth Circuit upheld the district court’s decision, ruling that New York law applies to the arbitration agreements and, under that law, the agreements were not procedurally unconscionable. The court also determined, based on American Express’s representation, that the agreements allow for arbitration of claims seeking public injunctive relief.
Beneker v. CBS Studios, Inc., et al.
On Feb. 29, America First Legal filed a lawsuit on behalf of Brian Beneker against CBS Studios for alleged violation of the Civil Rights Act of 1964. The plaintiff, Beneker, is a script coordinator and freelance scriptwriter who has been consistently writing episodes for a CBS television series. He alleged that he was “repeatedly denied a staff writer position” on the show despite positions being available. Beneker believes he was passed over for the position in favor of “nonwhite, LGBTQ, or female” candidates. On April 30, the plaintiff voluntarily dismissed one of the CBS entities, CBS Entertainment Group, LLC, as a defendant. On May 13, he filed an amended complaint against the remaining defendants, CBS Studios, Inc. and Paramount Global, re-alleging that they discriminated against him by denying him employment based on his race, sex, and sexual orientation in favor of less qualified applicants who were members of “more preferred groups.”
- On July 15, the plaintiff opposed CBS’s motion to dismiss, arguing that CBS seeks to “expand the right to discriminate on the basis of race or sexual orientation when that status impinges on an organization’s expressive message, to a generalized right to discriminate on the basis of status alone.” The plaintiff also argued that CBS’s “fraudulent concealment” of its discrimination justifies tolling the statute of limitations since CBS’s promises to promote the plaintiff delayed him recognizing that he was the victim of discrimination.
California for Equal Rights Foundation v. City of San Diego
On March 12, the Californians for Equal Rights Foundation filed a complaint on behalf of members who are “ready, willing, and able” to purchase a home in San Diego, but ineligible for a grant or loan under the City’s BIPOC First-Time Homebuyer Program. The plaintiffs allege that this violates the Equal Protection Clause of the Fourteenth Amendment.
- On July 8, the parties filed a joint motion to dismiss the City and Housing Authority of San Diego as defendants and to deny the City and Housing Authority’s pending motion for the judgment on the pleadings as moot. On July 9, the court granted the joint motion.
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