DEI under siege: Why more businesses are being accused of ‘reverse discrimination’
Jessica Guynn, USA TODAY
Updated 8 min read
He has accused Macy’s of discriminating against white men. McDonald’s and IBM, too. Even NASCAR – a mostly white sport that banned Confederate flags in 2020 – is in his sights.
Emboldened by a Supreme Court ruling last summer striking down affirmative action in education, Miller and his conservative advocacy organization America First Legal have taken the position that all DEI programs are illegal, embracing “reverse discrimination,” a concept that first emerged in the 1970s as a backlash to 1960s-era civil rights laws to address racial disparities in the workplace.
Stephen Miller, former Trump administration adviser and current president of America First Legal during the Conservative Political Action Conference, CPAC 2023, in March.
What is ‘reverse discrimination’?
Miller claims white Americans today are being denied opportunities so corporations can hire and promote more people of color and achieve their diversity goals.
Miller did not respond to requests for comment.
“If a major corporation said in proxy statements to shareholders or in the HR section of their website 'We are going to increase the white composition of our workforce by 15% this year,' I think most folks would say, 'Well, that’s kind of racist and that seems wrong,'” Gene Hamilton, vice president and general counsel of America First Legal, told USA TODAY in September.
Anti-affirmative action activist takes on corporate DEI
Miller may be the face of attacks on corporate diversity programs, but he's not the only one.
Fresh off his landmark affirmative action victory in higher education, conservative activist Edward Blum is making similar claims.
“There is no such thing in the law as reverse discrimination," Blum told USA TODAY. "It is simply racial discrimination.”
Conservative throw down legal challenges to DEI programs
Federal law prohibits private employers from considering race and other protected characteristics in employment decisions, but they have the discretion to take steps to remedy racial imbalances in their workforces.
In legal challenges, conservative activists are testing that prerogative by saying white workers are being unfairly disadvantaged by diversity, equity and inclusion (DEI) programs that benefit only minorities and by policies that tie executive compensation to diversity targets.
Last week, billionaire entrepreneur Elon Musk aired similar sentiments. “DEI must DIE,” he posted on his social media platform X, formerly Twitter. "The point was to end discrimination, not replace it with different discrimination."
Bracing for wave of ‘reverse discrimination’ lawsuits
Corporations are bracing for a wave of “reverse discrimination” lawsuits against DEI programs.
They are closely watching a Supreme Court case that could make it easier for workers to pursue employment discrimination claims over job transfers by eliminating the requirement to show material harm. A broad ruling in the case could cause a surge in "reverse discrimination" suits, legal experts say.
Edward Blum, a long-time opponent of affirmative action in higher education and founder of Students for Fair Admissions, leaves the U.S. Supreme Court after oral arguments in Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina on October 31, 2022.
‘Reverse discrimination’ claims are historically rare
Historically, "reverse discrimination" claims are relatively rare.
Though white workers account for about two-thirds of the U.S. workforce, their discrimination claims make up only about 10% of race-based claims, according to data USA TODAY obtained from the Equal Employment Opportunity Commission.
White workers alleging discrimination test the legal waters
But attorneys say the federal courts are beginning to see a small increase in claims challenging DEI initiatives.
The claims are being brought not just by political advocacy groups like Miller's or Blum's. Individual employees and groups of employees also are filing legal challenges.
USA TODAY parent company Gannett faces a proposed class-action lawsuit that accuses the newspaper publisher of discriminating against white employees in an effort to diversify its newsrooms. Gannett says the lawsuit is “meritless” and has asked a judge to dismiss it.
Morgan Stanley is being sued by a white former managing director who claims he was fired to make way for a less qualified and less experienced Black woman so the investment bank could meet diversity objectives. Morgan Stanley declined to comment.
AT&T is being sued by a former assistant vice president in its tax research department who says he was laid off less than two months after being told he could not advance because he was “a 58-year-old white guy.” AT&T denied the allegations and is contesting DiBenedetto’s lawsuit.
Some wins for ‘reverse discrimination’ claims
Some “reverse discrimination” complaints have been successful.
In June, a jury in New Jersey ruled in favor of Starbucks regional director Shannon Philips, who claimed she was fired for being white. The court ordered Starbucks to pay an additional $2.7 million in damages.
In 2021, David Duvall, an executive of the hospital operator Novant Health who claimed he was fired despite strong performance reviews and replaced by two women, one Black and one white, received a $10 million jury award. The award was later reduced to about $4 million. This month, a U.S. appeals court reviewing the case indicated it would uphold the award. Novant Health says a lack of leadership skills prompted Duvall’s termination.
DEI backlash followed George Floyd's killing
The rise in legal challenges to DEI programs proliferated after corporations stepped up efforts to increase racial and gender diversity after the killing of George Floyd in Minneapolis in 2020.
The top ranks of America’s largest corporations are still predominantly white and male, while women and people of color are concentrated at the lowest levels with less pay, fewer perks and rare opportunities for advancement, a USA TODAY analysis found.
This week the Congressional Black Caucus called on corporate leaders to "reaffirm their commitments to a "more racially inclusive economy."
"The economic state of Black America continues to suffer with underrepresentation in fast-growing high-wage industries, low probabilities of advancement, and a lack of representation in executive roles," it said.
Anti-DEI efforts to expand in 2024: Trump, Project 2025
The first volley in the conservative backlash against corporate DEI came from former President Donald Trump, who issued an executive order in 2020 banning the federal government and its contractors from offering DEI training on systemic racism. President Joe Biden rescinded the order.
What followed were attacks on everything from environment, social and governance principles to critical race theory as GOP presidential hopeful and Florida Gov. Ron DeSantis and other Republican leaders accused corporations of running diversity programs that paint all white people as racist and of abandoning colorblind systems based on merit to hire and promote people of color.
A coalition of conservative groups including America First Legal are preparing for a Republican administration with a manifesto known as “Project 2025.” Project 2025 calls for the Justice Department and the Equal Employment Opportunity Commission to take action against corporate DEI initiatives.
Conservatives embrace 'colorblindness' in the workplace
Justin Gomer, associate professor of American Studies at California State University, Long Beach, says conservatives are pushing concepts like “racial neutrality” and “colorblindness” in the workplace to maintain white power and dominance.
“White supremacy is so deeply rooted in our country and in our history that this is just the latest version of that, and it has proven very politically expedient to play into that,” Gomer said. “It is framing discrimination as strictly personal and individual, and it is denying that discrimination is structural and institutional.”
DEI in retreat as corporations come under fire
The intensifying attacks on corporate DEI has prompted some corporations to retreat from public targets for racial diversity in their executive ranks and from leadership training programs geared to underrepresented groups. Others are removing “diversity” from job titles.
New data from McKinsey & Co. show that fewer Black professionals are being promoted into management as companies back off ambitious goals and revert to nearly the same promotion rates for Black staffers as in 2019.
At least six major companies, including JPMorgan Chase, modified policies meant to increase racial and ethnic representation after conservative groups threatened to sue, according to a Reuters review of corporate statements.
The past year "has undeniably shifted the DEI landscape for years to come," according to a report from DEI consulting firm Paradigm.
"External forces are no longer pushing companies to invest in DEI; instead, in some cases, external forces are pushing back on companies' investment in DEI," the report said.
Republican and Democratic voters split on DEI
Republicans and Democrats are split on DEI and affirmative action in the workplace.
However, skepticism about the sincerity and effectiveness of corporate DEI programs is prevalent among Republicans and Democrats alike, with Democrats demonstrating more skepticism on both, the research found.
Republican voters in the study did not see a business case for DEI, but about half believe that DEI programs benefit society.