Members of Congress call on companies to retain DEI programs as court cases grind on

AP Business Writer

NEW YORK (AP) — A group of Democrats in Congress appealed to the largest U.S. companies Tuesday to hold onto their diversity, equity and inclusion programs, saying such efforts give everyone a fair chance at achieving the American dream.

The 49 House members, led by U.S. Rep. Robert Garcia of California, shared their views in a letter emailed to the leaders of the Fortune 1000. The move follows several major corporations saying in recent months that they would end or curtail their DEI initiatives.

“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.”

A handful of U.S. companies, including Ford, Harley-Davidson, John Deere, Lowes and Molson Coors, dialed back their DEI initiatives over the summer. The retreats came in the wake of the U.S. Supreme Court outlawing affirmative action in college admissions and after conservative activists targeted the prominent American brands over their diversity policies and programs.

DEI policies typically are intended as a counterweight to discriminatory practices. Critics argue that education, government and business programs which single out participants based on factors such as race, gender and sexual orientation are unfair and the same opportunities should be afforded to everyone.

“They create toxic environments. They divide people,” Ilya Shapiro, director of constitutional studies at the Manhattan Institute, said of diversity, inclusion and equity initiatives.

The opponents have had several legislative and legal victories, and dozens more cases are working their way through the courts.

“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 states that growing numbers of American consumers spend their money with businesses that champion inclusion and are unlikely to continue supporting companies that they see backing down on commitments to bring people together.

“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 says.

The letter comes on the heels of the U.S. Equal Employment Opportunity Commission announcing that it filed 110 lawsuits in the past year alleging that employers sexually harassed teenagers, discriminated against workers based on sexual orientation and gender identity, engaged in patterns of discrimination and violated the Pregnant Workers Fairness Act, among other violations.

The lawsuits represent a small fraction of the complaints lodged with the EEOC. The agency received more than 81,000 charges of workplace discrimination in fiscal year 2023, which was a 10% increase over 2022, EEOC Chair Charlotte Burrows said.

For every complaint, the EEOC notified the employer and launched an investigation. Many involved allegations of racial harassment or religious discrimination, Burrows said.

“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,” Burrows told the AP.

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

The Manhattan Institute’s Shapiro counters 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 claiming reverse discrimination may be gaining momentum. The U.S. Supreme Court recently decided it would 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 disagreed over whether to hold reverse discrimination cases to a higher standard. Some have ruled that if a person from a majority group brings a discrimination case, they have to show more evidence of discrimination than a person from a minority group who files a similar case.

“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 such as the American Alliance for Equal Rights have pushed back on affirmative action policies at universities and diversity, equity and inclusion policies run by corporations.

Recently, the Atlanta-based Fearless Fund had to shut down 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, regardless of race.

“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.”