Those of us in the employment law business who were not wearing ideological blinders and closely followed the corporate rise of what is now referred to as DEI were sounding alarms from the very first days of these programs. Specifically, we noted that the language of intersectionalism, DEI, ESG, CRT, and the rest of the acronym diversity universe was going to create real problems for companies that put these programs into effect. That's because the terms in which these programs are and were couched are unavoidably racist, sexist, and violative of every US civil rights law at every level. I'm not sure why businesses believed that they could institute racial and gender-based incentive plans, hiring practices, and the like without consequence but I put it down to the ideological blinders mentioned above.
Given these manifest legal issues, it comes as no surprise that DEI programs are being challenged regularly because they discriminate based on some protected factor such as race, gender, religion etc. There has been significant pushback on these challenges, including this one, which implies that anti-DEI efforts are so out of touch that challengers are reaching back to Civil War-era statutes to support the claims.
This is, as we say in the legal business, “hogwash”. The 42 USC 1981 claims noted in the article have been part of the civil rights litigation picture in the United States for as long as I have been litigating cases. The main difference between 1981 claims then and 1981 claims now is that the plaintiffs referenced in this article are white. Rather than some desperate contortion of antiquated law, what this article identifies is the straightforward application of laws that prohibit race discrimination to situations in which race discrimination- specifically DEI programs- is manifest. There was nothing mysterious or novel about this situation and DEI accolytes should expect to see more of these claims in the future.
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