Waxing philosophical: workplace speech vs. anti-discrimination law

Federal anti-discrimination laws protect people, not the content of their speech. Amy Wax, a Penn law professor (who, frankly, should have known better) just learned this lesson the hard way.

The law school disciplined her for what the it labeled "flagrant unprofessional conduct" stemming from a string of statements she made—some in the classroom, others in media—that denigrated racial minorities and others, including:

• Insinuating that Black people are inherently inferior to whites.
• Asserting the U.S. would be "better off with more whites and fewer nonwhites."
• Telling a Black colleague it's "rational to be afraid of Black men in elevators."
• Dismissing interracial marriage as misguiding advertising.
• Commenting on a podcast that Black women are "single moms with a bunch of guys who float in and out."
• Saying same-sex relationships are selfish and not about community or family.
• Claiming the country is better off with "fewer Asians" and describing them as resentful and envious of Western achievements.

Wax sued, claiming that punishing her for years of inappropriate racist, sexist, and homophobic statements was discrimination against her as a White Jewish woman.

Damage caps for discrimination claims don't work

$75,000. That’s what Morton Salt just paid to settle a lawsuit brought by the EEOC.

The agency alleged that Morton Salt discriminated against a Black employee because of his race and disability—and then retaliated against him for reporting it.

The allegations are disturbing:

• A white coworker allegedly used the n-word repeatedly, including calling employees "worthless [n-words]"—something Morton knew about.

• A Black employee reported the racist behavior.

• Instead of addressing or investigating the harassment, Morton reprimanded and ultimately fired the person who spoke up.

And what did it cost them? Seventy-five grand.

Yes, segregation is still illegal, and also amoral

Image via wiki commons, cc license

I can't believe I have to say this in 2025, but here we are … it's illegal and amoral to have racially segregated facilities in your business.

The attack on DEI does not mean employers must or should eliminate anti-harassment training

Even as some push back forcefully against DEI workplace initiatives, courts are pushing back even harder. Consider these excerpts from Diemert v. City of Seattle, in which a federal judge dismissed the claims of a white man who alleged that his employer's mandatory DEI training created a racially hostile work environment.

How to respond to the Justice Department's DEI hitlist

"The Department of Justice's Civil Rights Division will investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector." 

 

That's the key sentence from a Feb. 5, 2025, memo that Attorney General Pam Bondi sent to all DOJ employees.

What does it mean? No one really knows. What we do know is that diversity, equity, inclusion, and accessibility are top priorities for this administration. The key question is how the administration defines "illegal."

Here's what we can infer so far:

What hiring and employment look like without DEI

What does a country without DEI look like? Some people say that's what they want. No more diversity, equity, and inclusion initiatives in hiring or the workplace. Just a pure "meritocracy."

So what does that actually look like?

Is Trump coming after Title VII next?

"Dad, did Trump just get rid of workplace discrimination laws?" That's the question my daughter asked me yesterday.

She was referring to his Executive Order entitled, Ending Illegal Discrimination and Restoring Merit Based Opportunity.

To answer Norah's question, no, that EO did not get rid of workplace discrimination laws. Instead, it dismantled federal Diversity, Equity, and Inclusion programs and placed all federal DEI employees on unpaid leave. It also rescinded Executive Order 11246, originally signed by President Lyndon Johnson in 1965, which prohibited federal contractors from discriminating based on race, color, religion, sex, or national origin, and further removing their affirmative action obligations in that regard.

Neurodivergence is not an excuse for racism

"He's on the spectrum" is not an excuse for racism.

I've seen more than one person attempt to justify Elon Musk's Nazi salute, or dismiss it, citing his Asperger's syndrome, a form of autism spectrum disorder.

I call 🐂💩!

Bigotry, racism, and antisemitism are not symptoms of Asperger's or autism. They are, however, hallmarks of being a bigot, racist, or antisemite.

An expensive lesson on pay-equity compliance

Mastercard has agreed to pay $26 million to settle allegations that it systematically underpaid thousands of female, Black, and Hispanic employees. The settlement resolves claims that the company underpaid 7,500 female, Black, and Hispanic workers compared to their male and white counterparts for performing the same or similar work.

As this case illustrates, allegations of systemic pay discrimination hit hard—financially and reputationally. As an employer, you can and should take steps to ensure fair pay practices. Not only because it's the right thing to do, but because it's critical to avoid costly lawsuits and foster a workplace of trust and respect.

A textbook example of FAFO

When a judge or jury finds your client dishonest, they've decided your fate. If that dishonesty involves lying to the court, your client may never get the chance to face a jury.

A prime example is Deering v. Lockheed Martin, a case recently decided by the 8th Circuit.

"DEI hire" is the new N-word.

After President Biden dropped out of the 2024 campaign and elevated his Vice President, Kamala Harris, as the presumptive Democratic nominee, supporters of Donald Trump started attacking her as a "DEI hire."

For example, during an interview with CNN’s Manu Raju, Republican Rep. Tim Burchett said this: "100 percent, she was a DEI hire." He's not only one pushing this narrative.

When one person calls another a "DEI hire," they mean they are unqualified, unskilled, and hired only because of their race. They say it because they cannot say publicly what they really want to say. 

What is "implicit bias" and how to combat it in your business

Dwight Jackson, a Black man, claims that the Shinola Hotel denied him a job interview because of his race. He knows this, he says, because he reapplied for the same job at the same hotel with the same resume ... with one key difference. He changed his name to John Jebrowski. While the hotel didn't offer Jackson an interview, it did offer one to Jebrowski. That, Jackson says in his recently filed lawsuit, is race discrimination.

Inherent bias refers to the attitudes or stereotypes that unconsciously affect our understanding, actions, and decisions. These biases can silently influence hiring decisions, leading to discrimination based on characteristics such as race. Name bias is one example of how inherent biases manifest themselves.

Should jury verdict forms in discrimination cases include the McDonnell Douglas factors?

Jury trials are often won or lost based on the instructions and verdict forms the court provides the jury.

Jury instructions outline the legal standards that the jury must use to decide the case. Verdict forms allow the jury to record its decisions on the issues in the case and typically include specific questions that the jury must answer reflecting their findings on claim.

In Craddock v. FedEx Corp. Servs.Craddock v. FedEx Corp. Servs., the plaintiff — a Black woman fired after an altercation at work — complained on appeal about an alleged inconsistency in the jury's verdict.

This should constitute a racially hostile work environment; the court says it didn't

15 different Black employees complain that their health-care employer maintains a racially hostile work environment. The allegations include several being exposed to the N-word at work, patients refusing treatment by Black employees and calling them "colored" and other slurs, and other race-based incidents.

Nevertheless, in EEOC v. Village at Hamilton Pointe, the 7th Circuit affirmed the dismissal of the agency's racial harassment lawsuit. "In sum," the court wrote, "the evidence of record does not support, under established principles of law, a case for racial harassment that was so severe or pervasive as to alter the conditions of employment for any of these claimants."

I disagree.

Does DEI training create a hostile work environment?

"You can't force me to sit through DEI training! I'm White. It creates a racially hostile work environment."

That's what one employee recently argued in a racial harassment lawsuit he filed against his employer, a state department of corrections, which had mandated DEI training for all employees.

The 10th Circuit Court of Appeals affirmed the dismissal of this lawsuit, concluding that this training could not constitute a hostile work environment because it only occurred one and lacked any race-based ridicule or insults.

But all is not roses for employers and their efforts to offer DEI training to better their workplaces. 

“DEI” is not a 4-letter word

"DEI" is not a 4-letter word … no matter what some people want you to believe.

Companies such as Sherwin-Williams are scrapping their internal use of the words "Diversity," "Equity," and "Inclusion," and are replacing them with words such as "Belonging" and "Culture."

A DEI smackdown

It's a DEI heavyweight battle of epic proportions that played out of X over the past week.

In the blue corner, hailing from Big D, the owner of the Dallas Mavericks and serial entrepreneur Mark Cuban: 

I've never hired anyone based exclusively on race, gender, religion. I only ever hire the person that will put my business in the best position to succeed. And yes, race and gender can be part of the equation. I view diversity as a competitive advantage.

And in the red corner, hailing from our nation's capital, EEOC Commissioner Andrea Lucas: 

Unfortunately you’re dead wrong on black-letter Title VII law. As a general rule, race/sex can't even be a "motivating factor" — nor a plus factor, tie-breaker, or tipping point.… This isn't an opinion; reasonable minds can't disagree on this point. It's the plain text of Title VII.

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” —

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."

Managing an overly sensitive employee

Floyd Sesson, a Black UPS parts mechanic, saw race discrimination in every turn within his workplace.

When UPS changed its policy to prohibit overtime for all parts mechanics, Sesson claimed that the policy unlawfully targeted him because of his race.

When Sesson complained to management about the overtime cuts, he claimed he further lost overtime in retaliation for his complaints.

When supervisors tried to manage Sesson, he claimed they were harassing him because of his race.

The 6th Circuit had little difficulty in affirming the dismissal of Sesson's discrimination, retaliation, and harassment lawsuit.