Tuesday, November 7, 2023

DEI programs continue to be a lawsuit target

Major League Baseball. NASCAR. Starbucks. McDonald’s. Morgan Stanley, American, United and Southwest Airlines. America First Legal, a conservative group led by Stephen Miller, has targeted each of these for their “illegal” practices of hiring non-Whites and females.

In its most recent letter to the EEOC, urging it to investigate American Airlines, AFL cited the following as evidence of “unlawful employment practices” —

1./ By December of 2021, American Airlines “[i]ncreased Black representation at the director and above level by 50% versus 2020; retained 90% of these leaders.”

2./ It “[i]ncreased Black representation by 20% versus 2020; retained at least 75% of Black management and support staff.”

3./ American Airlines “[l]aunched the Executive Sponsorship Program for Black D+ leaders and will broaden ESP’s reach in 2022. [It] also partnered with McKinsey to offer our Black, Hispanic, and Asian leaders the opportunity to participate in their Leadership Academies.”

4./ It focused on “expanding [its] Cadet Academy to ensure prospective pilots, particularly people of color and women, have access to the support needed to enter the profession.” American Airlines also noted that, since the launch of the Cadet Academy in 2018 “[w]omen and people of color constitute 51% of the students” and that “women alone account for 32% and 12% of students identify as Black.”

5/. American Airlines “made progress” in 2022 as 6% of its pilots hired were women, 6% self-identified as Black and 25% identified as people of color.

As a result, says AFL, “American Airlines ‘Diversity, Equity and Inclusion’ hiring and promotion practices facially violate [Title VII]…. Decades of case law have held that — no matter how well-intentioned — quotas and employment practices aimed to achieve such ‘balancing’ are strictly prohibited.” (mis-citing Students for Fair Admissions, SCOTUS’s university admissions affirmative action decision).

There is a vast difference between racial quotas or hiring preferences (which have always been illegal discrimination) and programs designed to increase minority representation in hiring pools or opportunities to compete for advancement within organizations (which, for now, are lawful DEI initiatives). AFL’s lawsuits target the latter and seek to expand the very definition of discrimination under Title VII.

For now, these programs are perfectly legal. The more lawsuits that challenge them, however, increase the odds that a conservative judge will change the law by finding them illegal. And with the current composition of the Supreme Court, all bets are off as to what it will ultimately do with this important issue.

For now, I still believe that businesses that have DEI programs should stay the course, but should keep one eye squarely on how this issue is developing in the courts. Because the day may soon come when these programs become yet another victim to a reactionary and dangerous political agenda.