The definitions in our glossary are primarily sourced from Nolo’s Plain-English Law Dictionary and Cornell Law School’s Legal Information Institute. We have made slight modifications where needed for brevity and to better tailor the definitions to the specific needs of users of this website. For more detailed explanations of the terms, users are encouraged to review the definitions on these websites or conduct their own independent research.
Explainer
Workplace Discrimination
Advancing DEI Initiative
Many federal, state, and local laws prohibit employers from discriminating against employees or applicants for employment based on certain characteristics, such as race, sex, age, disability, and religion. Each law is worded differently, but the two main laws invoked in anti-DEI lawsuits are:
Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, national origin, and sex. (The prohibition on sex discrimination also prohibits discrimination on the basis of sexual orientation and gender identity.)
Section 1981, which prohibits race discrimination in the making and enforcement of contracts, including employment contracts.
Both of these laws have been interpreted to bar discrimination against any individual based on a protected characteristic, even if that individual belongs to a majority or dominant group in the workplace.
Most of the cases we are tracking in this category involve dominant-group members (such as white individuals and/or men) arguing that they experienced some harm at work (such as being fired or denied a promotion) because of their employer’s DEI policies. In response, the employer usually argues that it made the employment decision based on legitimate, non-discriminatory factors. These cases are heavily fact-dependent, as courts will consider the nature and scope of the applicable DEI policies, the plaintiff’s performance on the job, and any documentation or testimony that helps explain why the employer made any relevant decisions.
Having DEI policies in the workplace is not itself discriminatory. The key question in these cases is whether the particular plaintiff suffered relevant harm in their employment because of a protected characteristic. Most DEI policies do not cause any such harm.
There is no contradiction between having robust DEI initiatives—including with respect to outreach, recruitment, onboarding, training, work assignments, mentorship, sponsorship, promotion, and so on—and making employment decisions based on the candidates’ job-relevant skills and qualifications. In fact, DEI initiatives typically help employers reach fair employment decisions by reducing the risk of bias. For instance, an employer without a DEI policy might conduct unstructured job interviews, where hiring managers make decisions based on a “gut feel” for whether a candidate is a “good fit.” This process involves a significant risk of biased decision-making. By contrast, an employer with a DEI policy might develop a structured scoring system and set of competency-based questions for interviews, and train hiring managers on how to mitigate bias. This DEI policy makes workplace discrimination less likely, not more likely.
We are tracking workplace discrimination cases that invoke DEI policies, because we want to monitor how courts are assessing the relationship between DEI and discrimination in the new legal landscape. For the most part, we expect courts to continue distinguishing between appropriately administered DEI policies (which are lawful), and discriminatory employment decisions affecting individual workers (which are unlawful). We recommend that organizations conduct a risk assessment with legal counsel for any DEI policies that might blur this distinction, such as a policy that requires managers to meet a hiring quota for candidates that belong to a particular group.