Unraveling Affirmative Action: Are Employers in the Clear or Are They the Next Target?

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Last March, a federal judge ruled The Minority Business Development Agency (MBDA) was discriminating on the basis of race by only offering grants to minority-owned businesses. This ruling is one in a string of recent court decisions that have declared race-based preference systems illegal.

As the crusade to gut affirmative action continues, challenges to employers’ DEI initiatives continue to rise. Activist groups, investors, state attorney generals, and employees are all attacking such programs on multiple fronts. As an employer, you must tread carefully.

Background

In Nuziard v. Minority Business Development Agency, the MBDA was sued by three white business owners (“Plaintiffs”) who sought grants. The Plaintiffs were deemed ineligible for the grants because they were not “socially or economically disadvantaged individual[s].” While this phrase seems race-neutral, the term “socially or economically disadvantaged individual” was defined to mean “an individual who has been subjected to racial or ethnic prejudice or cultural bias.”

Certain racial groups were automatically included in the MBDA’s definition, including: (i) Blacks or African Americans; (ii) Hispanics or Latinos; (iii) American Indians or Alaska Natives; (iv) Asians; and (v) Native Hawaiians or other Pacific Islanders. Unlisted racial groups were presumptively ineligible.

The judge focused on the presumption that the Plaintiffs were not disadvantaged merely because of their race. This presumption, the judge ruled, was race discrimination and, therefore, illegal. The judge barred the MBDA from continuing its racial classification system.

The Ripple

On its face, Nuziard has no legal impact on employers. But some players are pushing for affirmative action to be struck down everywhere — including in the workplace. The principal lawyer representing the Plaintiffs, Dan Lennington, said, “We hope this is a precedent to eliminate all [affirmative action] . . ..  Automatically labeling a group of people as disadvantaged is ridiculous.”

And it seems Mr. Lennington may be on to something. Recently, Jonathan Bresser, a white, male, law student at DePaul University College of Law, filed a complaint against the Chicago Bears. Bresser applied to be the Chicago Bears’ “Legal Diversity Fellow”. Bresser was rejected from the program, which was only open to “people of color and/or female law students.”

Bresser’s lawsuit is just an example of the many legal challenges by conservative groups to stop corporate diversity, equity, and inclusion initiatives following last year’s US Supreme Court decision curtailing the use of race as a factor in college admissions.

Discrimination is Still Discrimination (but you may need to prove it)

While affirmative action is on rocky footing, the law is clear about one thing: discrimination laws prohibit discriminating against “majority” identities, such as white males. In fact, reverse discrimination claims are on the rise.

But that’s about all that is clear. Courts across the country are conflicted on how discrimination laws apply to “reverse discrimination” claims.

In reverse discrimination claims, some courts apply heightened evidentiary burdens for plaintiffs from majority groups. In 1981, the United States Court of Appeals for the D.C. Circuit became the first court to adopt the “background circumstances” rule. This rule requires plaintiffs from majority groups to show background circumstances that substantiate that the defendant is “that unusual employer who discriminates against the majority.”

In total, five Circuits have adopted the “background circumstances” rule. Two other circuits expressly rejected it. The remaining five never addressed the background circumstances rule and treat discrimination claims from majority groups the same as claims from plaintiffs in other groups.

Weathering the Chaos

As new cases on affirmative action and reverse discrimination muddy the waters, the risk of maintaining DEI programs has increased. Companies should internally assess their risk tolerance, assess their DEI programs, and develop a responsive strategy. Not all DEI programs are made equal. Your DEI program could be protecting your company or exposing it to substantial risk. You should work with skilled counsel to evaluate your situation.

 

 

Updated: Jun 20, 2024

About the author
Robert Brody of Brody and Associates, LLC is a member of XPX Tri-State

you have an employee-related issue including court and agency cases, governmental personnel-related audits, or you need counsel on addressing any employee-related issue.