Wednesday, August 16, 2023

Despite what SCOTUS said about collegiate affirmative action, corporate DEI efforts are still legal

Last week, a federal court judge dismissed a lawsuit filed by a conservative shareholder against Starbucks challenging the company's diversity, equity, and inclusion policies. He called the lawsuit "frivolous."

In 2020, Starbucks decided that it needed a greater representation of BIPOC (Black, Indigenous, People of Color) employees. As a result, it announced a policy that aimed to increase company-wide BIPOC representation to at least 30% in five years. Its efforts included implementing a leadership accelerator program for BIPOC employees, linking executive compensation to meeting DEI goals, and granting funds to community nonprofits.

National Center for Public Policy Research, which owns around $6,000 in Starbucks stock, sued, claiming those policies require the company to make race-based decisions in violation of state and federal civil rights laws. Explaining the lawsuit, the NCPPR said that setting "goals for the number of 'diverse'—meaning not-white—employees it hires … is outright racial discrimination."

U.S. District Judge Stanley Bastian strongly disagreed with that argument and dismissed the lawsuit as frivolous. "If the plaintiff doesn't want to be invested in 'woke' corporate America, perhaps it should seek other investment opportunities rather than wasting this court's time," the judge said at the motion to dismiss hearing, according to Reuters. The judge also barred the NCPPR from refiling its complaint and is permitting Starbucks to seek recovery of its attorneys' fees.

This is not the only ongoing effort to end DEI practices in corporate America. Last month Senator Tom Cotton sent a letter to 51 of the country's top law firms warning them against continuing DEI programs that treat individuals differently based on their race. And this is just the tip of the anti-DEI iceberg that is taking root in certain corners of our country.

The reality, however, is that no matter what six Supreme Court Justices said about affirmative action in college admissions, there is nothing illegal about corporate diversity, equity, and inclusion programs. DEI programs encourage the representation and participation of diverse groups of people within companies, including racial minorities. They are neither quotas nor race-based hiring decisions (which have always been, and remain, illegal). Anyone who tells you differently is just looking for a reason to get rid of corporate DEI programs.

The fact that we have to defend ideals such as "diversity," "equity," and "inclusion" should be sounding massive alarm bells for our nation. Businesses that believe in DEI as a corporate good should stay the course on their DEI efforts (while still keeping an eye on what the courts are saying). They should also make sure their hiring and other workplace policies do not run afoul of the current state of the actual law (e.g., no quotas, no hiring because of one's protested class).

DEI at work was never illegal, nor should it be. The fact these concepts are controversial is equal parts sad and scary. Or, as Judge Bastian put it, anyone is free to choose not to do business with a "woke" company, but no one can stop a company from making a policy decision promoting diversity, equity, and inclusion.