By Mark Carey
Less than a year ago I wrote an article titled Employers Don’t Want DEI to Succeed. To my humor, DEI died a quick death and both employees and the pundits cheered. Many observers believe DEI died due to over saturation by corporate vendors pedaling for more consulting dollars. Many employees believe the DEI programs mandated on them were a joke and ignored them entirely. Others believe DEI died because of a recent U.S. Supreme Court decision in June 29, 2023, captioned as Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, permanently banning affirmative action in the education setting but not the employment setting. The SFFA decision blasted a hole through the bottom of the DEI boat and all employers noticed! Employers are now panicking about being sued for reverse discrimination caused by their DEI policies that adversely impacted White/Caucasian employees.
According to a Bloomberg article on March 4, 2024, Wall Street’s DEI retreat has officially begun, large financial institutions have revamped their DEI programs. Goldman Sachs Group opened the “Possibilities Summit” to all students not just Black students. At Bank of America, the bank modified internal programs previously focused on women and minorities to apply to all employees. At Bank of New York Mellon, their lawyers advised them to get rid of diversity metrics or be sued for reverse discrimination. Tesla removed diversity language for minority employees in a regulatory filing. According to the above article, “Bankers and lawyers contend they have little choice but to reframe or pause new diversity initiatives and to get ahead of the blowback and potential litigation.” In other words, companies are trying to prevent further DEI racism and reverse discrimination cases that are being threatened by my firm and others. Anti-discrimination employment statues are color blind, why did employers believe they were not?
Companies will likely need to adjust their DEI programs to ensure they are race-neutral on their face. This might involve focusing on broader criteria like socioeconomic backgrounds or educational experiences from disadvantaged backgrounds. The emphasis may shift towards creating a more inclusive workplace culture and ensuring equal opportunities for advancement for all qualified candidates regardless of race.
Employer DEI programs with quotas and metrics flipped the middle finger at the Rule of Law in this country, such as Title VII of the 1964 Civil Rights Act and The Civil Rights Act of 1866, 42 U.S.C. § 1981. Quit literally, corporate DEI programs shot out of the gate with racial quotas and race baiting challenges that White/Caucasian employees were inherently racist. Some readers may be offended by this view, which is not mine, yet this is what many employees have shared with me regarding DEI programs instituted over the past few years.
In a recent WSJ article titled Reports of DEI’s Death Are Greatly Exaggerated, the author discussed how DEI programs use faulty Implicit Bias Testing with employees. If you are curious whether you hold an implicit “racial” bias, Harvard University (yes, the very institution which was the focus of the U.S. Supreme Court’s attention in the SFFA case) has an Implicit Bias Test that you can take to determine if you hold a race bias (there are tests for many forms of bias). You may feel uncomfortable about how this test makes you select an answer you would not otherwise choose because it offers no other options. You may feel a bit taken advantage of by the test and how it forces an answer on you that you may disagree with. How is this test legitimate? It’s not and that is the point of the WSJ article.
The primary reason DEI programs are in retreat is because the U.S. Supreme Court’s SFFA decision declared that racial preferences/metrics in affirmative action programs in the education setting are inherently unconstitutional. Justice Roberts wrote for the Court,
“Eliminating racial discrimination means eliminating all of it. And the Equal Protection Clause, we have accordingly held, applies, ‘without regard to any differences of race, of color, or of nationality’—it is ‘universal in [its] application.’ For ‘[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.’ (internal citations omitted) (Id. at 205).”
“As this Court has repeatedly reaffirmed, “[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.” (citation omitted) (Id. at 217).”
“[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” (Id. at 230).
Employers now see the writing on the wall and are revamping DEI programs to provide for a color blind approach to diversity equity and inclusion.
Unfortunately, the statistics on current “reverse race discrimination” cases are nearly nonexistent. The only relevant metric we have is the one maintained by the U.S. EEOC (Here) but as you will see the information is limited and not specific to “reverse race discrimination cases” and only reports up to 2022.
On August 29, 2023, a lawsuit alleging reverse discrimination against Morgan Stanley was filed in the Southern District of New York (Kevin Meyersburgh v. Morgan Stanley & Co., LLC, 1:23-cv-07638 (LAP)). In that case, a White employee name Kevin Meyersburg was unlawfully terminated from his role as managing director and head of executive services and replaced by a “Black female with significantly less experience and qualifications for the position,” according to his complaint. (Read Full Complaint Here)
Meyersburg was told by another executive regarding the reason for his termination, “that it was because of [diversity and inclusion] initiatives”, according to his complaint. Morgan Stanley moved to compel arbitration and the case was stayed in federal court pending the outcome of the arbitration case. Meyersburg was brave enough to publicly disclose Morgan Stanley’s allegedly unlawful DEI practices before being swallowed up by forced arbitration.
Meyersburg’s experience is very common and appears to play out in many of my cases. Specifically, I encounter many well qualified White/Caucasian executives who have had a brilliant career with their employers but suddenly hit a wall of DEI selectivity that does not favor them based on race. I always know when a DEI racial quota is being used against a client when the high performing employee is suddenly cast down as underperforming while lesser experienced Black employees are given preferential treatment. Typically, employers start making stuff up because they cannot find any legitimate fault with the employee’s performance. The examples I find in client fact patterns stand out like a White Elephant. Employers are literally taking a risk that no one will notice the reverse race discrimination. Stupid is as stupid does.
As Justice Roberts correctly stated in his majority decision in SFFA, “[r]acial classifications are simply too pernicious to permit…” Corporate DEI programs must be race neutral or face the wrath of a federal lawsuit to expose the unlawful quota practice.
If you have experienced reverse discrimination based on race caused by your employer’s DEI program, do not hesitate to reach out to me. I would enjoy listening to your situation. Contact Carey & Associates, P.C. at 203-255-4150 or via email at info@capclaw.com.
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