Nearly every major institution has a diversity, equity, and inclusion (DEI) plan, and advertises it as loudly, frequently, and insufferably as possible — having such a plan puts the institution on the side of the angels. Not having a plan suggests the institution is racist or, at least, retrograde.
Because our woke anointed support DEI plans, they seldom receive critical scrutiny. But many such programs provide racial and ethnic preferences that are flatly unlawful and exist unchallenged. Recent news reports of major companies announcing the implementation of positive discrimination plans fuel the perception that these DEI initiatives pass legal muster. After all, these companies have substantial legal departments and major law firms on retainer. Surely, the plans passed legal review.
Not always.
Years ago, in United Steelworkers v. Weber, the Supreme Court upheld the legality of private sector affirmative action plans, provided they’re designed to remedy a “manifest imbalance” in a “traditionally segregated workforce.” The terms “manifest imbalance” and “traditionally segregated workforce” were sufficiently nebulous for it to be left to circuit courts to sort out what they meant in a given context. Most courts require that the plan be supported by direct evidence of discrimination against the beneficiary group (although some cases suggest mere evidence of statistical imbalances may suffice).
Weber was decided in 1979. Since then, however, employers have developed affirmative action or DEI plans for reasons wholly unrelated to past discrimination or traditionally segregated workforces. Some are designed to comply with Executive Order 11246, requiring government contractors to take affirmative action. Some are designed for cosmetic reasons and others to forestall public opprobrium. Most are at least partially designed to virtue signal.
A review of websites and promotional materials of major corporations and other large institutions shows that “benign” DEI programs are nearly ubiquitous. But many of these programs may be problematic, as the Fifth Circuit’s Frank v. Xerox demonstrates.
In Frank, some of Xerox’s black employees challenged the company’s Balanced Work Force (BWF) Initiative. The BWF was designed to ensure that racial and gender groups in Xerox’s Houston office were represented at all levels of the company in reasonable proportion to their respective numbers in the local workforce. Xerox set racial and ethnic “goals” for each job and grade. Management evaluated supervisors on their success in meeting these goals.
The plaintiffs alleged that the BWF unlawfully discriminated against them. Since blacks were overrepresented in the Houston office, Xerox’s goals were tilted against them.
The court found that the existence of the BWF program, coupled with evidence that the company followed the plan, constituted direct evidence of unlawful discrimination under Title VII of the 1964 Civil Rights Act.
The diversity programs of most public sector employers face an even greater burden: the need to survive strict scrutiny under the Equal Protection Clause. In other words, the diversity program must promote a compelling governmental interest and be narrowly tailored to achieve that interest. What qualifies as a compelling governmental interest in this regard is limited almost exclusively to remedying actual instances of past discrimination by the public employer in question. Undaunted, some DEI proponents have been straining to apply Grutter’s “benefits of diversity” rationale to public employment. But the Supreme Court made clear that that rationale applies because the First Amendment (purportedly) grants educational institutions broad latitude in defining their pedagogical missions. While this could possibly be used to justify the hiring of, say, a professor, Grutter’s First Amendment predicate has no application to most other public employers (and may not survive SFFA v. Harvard, currently before the Court).
DEI plans are the rage. But wokeness could come at a cost.