Members of Congress Urge Companies to Retain DEI Programs Amidst Legal Challenges

NEW YORK – A group of Democratic members of Congress has appealed to the largest U.S. companies to maintain their diversity, equity, and inclusion (DEI) programs, arguing that such efforts are essential to ensure fairness and opportunity for all Americans.

Forty-nine House members, led by Rep. Robert Garcia (D-Calif.), shared their views in a letter sent to the leaders of the Fortune 1000 companies. This move comes after several major corporations announced plans to scale back or end their DEI initiatives in recent months.

“Inclusion is a core American value, and a great business practice,” the lawmakers wrote. “By embracing this value, you create safer and fairer workplaces without sacrificing quality or financial success.”

The retreat from DEI programs by some companies, including Ford, Harley-Davidson, John Deere, Lowe’s, and Molson Coors, follows the U.S. Supreme Court’s decision to overturn affirmative action in college admissions and a backlash from conservative activists who have targeted prominent companies over their diversity policies.

Critics argue that DEI programs, which are intended to address discriminatory practices, are unfair and that everyone should have equal opportunities regardless of factors like race, gender, and sexual orientation.

“They create toxic environments. They divide people,” said Ilya Shapiro, director of constitutional studies at the Manhattan Institute, referring to DEI initiatives.

Opponents of DEI programs have achieved several legislative and legal victories, with numerous cases still pending in courts across the country.

“These efforts to roll back rights are happening everywhere. They’re happening at the workplace. They’re happening in state legislatures,” Garcia told The Associated Press. “And it needs to stop. And we’ve got to push back and be vocal. We can’t just sit by and allow this to happen.”

The lawmakers’ letter asserts that an increasing number of American consumers favor businesses that champion inclusion and are likely to withdraw their support from companies that back away from their commitments to diversity.

“Continual progress towards more equal policies and benefits decreases the risk that anyone – employees and consumers – will experience discrimination, bias, and other threats to their safety and well-being,” the letter states.

The letter arrives on the heels of the U.S. Equal Employment Opportunity Commission (EEOC) announcing that it filed 110 lawsuits in the past year alleging various workplace violations, including sexual harassment of teenagers, discrimination based on sexual orientation and gender identity, and violations of the Pregnant Workers Fairness Act.

The lawsuits represent a small fraction of the complaints filed with the EEOC, which received over 81,000 charges of workplace discrimination in fiscal year 2023, a 10% increase compared to 2022.

“Most people don’t even report internally, much less to the federal government, when they experience discrimination, so unfortunately, it’s the tip of the iceberg,” EEOC Chair Charlotte Burrows said.

Burrows and other commissioners strongly support diversity, equity, inclusion, and accessibility programs, stating that “it is in so many ways an antidote to the kinds of practices that lead us to have to go to court.”

The Manhattan Institute’s Shapiro, however, argues that DEI programs have little to do with civil rights law.

“The pushback against it is not a pushback against anti-discrimination laws or anything that existed really before 10 years ago or so,” he said. “DEI is divisive. It views people and issues through lenses of identity, classifies people based on privilege hierarchies and intersectional matrices, and is antithetical to a productive working environment.”

Meanwhile, lawsuits alleging reverse discrimination are gaining momentum. The U.S. Supreme Court recently agreed to hear a lawsuit filed by Marlean Ames, who claims she was discriminated against in her job at the Ohio Department of Youth Services because she was straight.

“It’s a case that people are expecting will open the courthouse doors to more reverse discrimination suits,” said Jason Schwartz, co-chairman of the labor & employment practice group at Gibson Dunn.

Circuit courts have differed in their rulings on whether to hold reverse discrimination cases to a higher standard. Some have ruled that individuals from majority groups must present more evidence of discrimination than individuals from minority groups who file similar lawsuits.

“The Supreme Court’s interest in that case signals some potential that they’re going to lower the bar,” Schwartz said. “We already see a really massive uptick in these reverse discrimination cases.”

Groups like the American Alliance for Equal Rights have pushed back against affirmative action policies at universities and DEI policies implemented by corporations.

The Atlanta-based Fearless Fund, for example, was forced to halt a grant contest for Black women business owners as part of a settlement with the American Alliance for Equal Rights, which argued that race-based programs should be open to everyone.

“There’s been such an intense focus on all of the risk emanating from the anti-DEI side,” said David Glasgow, executive director of the Meltzer Center for Diversity, Inclusion, and Belonging at the NYU School of Law. “But I do worry sometimes that organizations may be over-correcting for that or worrying a little bit too much about that at the expense of the other side of the equation.”

Key Takeaways:

• Democratic members of Congress have urged Fortune 1000 companies to maintain their DEI programs despite legal challenges and a backlash against such initiatives.
• The call for continued DEI efforts comes amid concerns about the potential impact of recent Supreme Court rulings and the rise of lawsuits alleging reverse discrimination.
• Supporters of DEI programs argue that these efforts are essential for creating fair and inclusive workplaces.
• Opponents of DEI programs argue that these initiatives are divisive and unfair.
• The debate over DEI continues to evolve, with legal and political challenges shaping the future of these programs.