New England Biz Law Update
The landscape of diversity, equity, and inclusion (DEI) initiatives in American workplaces may shift as former President Donald Trump prepares to return to office. The new administration, coupled with recent (and pending) Supreme Court decisions, may reshape employment law.
U.S. Supreme Court impact
Recent Supreme Court decisions have already begun to alter the DEI landscape. Some employers shifted their practices after the 2023 Students for Fair Admissions v. Harvard decision, which struck down race-conscious admissions policies at Harvard and the University of North Carolina. Companies worried the court’s reasoning could be applied to challenge race-conscious hiring and promotion practices.
More recently, in Muldrow v. City of St. Louis, the Supreme Court lowered the threshold for Title VII claims by ruling that employees only need to show “some” harm to employment conditions, rather than “significant” harm. This makes it easier for employees to pursue discrimination claims, which, according to some legal analysts, could spur a new slew of “reverse discrimination” claims that might not ordinarily survive in court.
To that end, the upcoming oral arguments in Ames v. Ohio Department of Youth Services case, scheduled for February, could have an even bigger impact. In Ames, the court will address the standard for reverse discrimination, evaluating whether plaintiffs from a majority group must demonstrate additional background circumstances to support their claim above the requirements placed on plaintiffs from a protected class.
Trump administration’s anticipated approach
Meanwhile, companies are also watching the Trump administration and how new federal agency leadership could challenge diversity policies.
For example, Trump nominated Harmeet K. Dhillon to lead the Justice Department’s Civil Rights Division, citing her legal work targeting “corporations who use woke policies to discriminate against their workers.” In addition, Stephen Miller, the incoming White House deputy chief of staff for policy, has a history of challenging corporate DEI programs.
Overall, the administration is expected to pursue actions like these:
- Banning diversity training in the federal government
- Restricting private employer DEI initiatives, targeting federal contractors among others
- Targeting DEI programs through Justice Department investigations
- Challenging university practices
- Potentially rescinding OFCCP affirmative action plan requirements for federal contractors
- Restricting H1-B visas and other immigrant hiring programs
Corporate response
Select corporations had already begun dialing back their DEI programs, in what some have called a “growing wave of anti-DEI sentiment.” In March 2024, for example, Starbucks investors voted to remove DEI goals from executive bonus metrics. Lowe’s and Harley-Davidson have also made headlines for dialing back their DEI programs.
In November, Walmart announced plans to stop funding its Center for Racial Equity, to stop sharing data with the Human Rights Campaign, and to prevent third-party merchants from selling LGBTQ-themed items that could be marketed to children, according to New York Times reporting.
While some corporate leaders are expressing their ongoing support for DEI efforts, others are rebranding DEI initiatives under different names, with a greater emphasis on connection, inclusion, and belonging. Still others are taking a “wait-and-see” approach.
Legal experts emphasize that while political rhetoric may shift, fundamental anti-discrimination laws remain unchanged. Organizations can still be subjected to traditional discrimination claims from historically marginalized groups, even as reverse discrimination claims increase.
The situation remains fluid as organizations navigate between maintaining inclusive workplaces and avoiding legal challenges. While some DEI initiatives may face increased scrutiny, core principles of workplace fairness and equal opportunity will likely endure.
