A growing list of companies are restructuring employee resource groups as they scale back diversity, equity, and inclusion programs, raising legal risks for employers responding to public pressure from conservative backlash.
Decisions to preserve or curtail employee resource groups and other DEI programs could provide fodder for discrimination claims—from workers in traditionally marginalized groups, as well as White or male employees.
It’s the latest challenge employers must navigate in a heated landscape fueled by anti-DEI social media campaigns on one side and momentum from protests over racial inequality on the other.
“Companies have to be and should be looking at how they have programs structured,” said Victoria Lipnic, a former acting chair of the Equal Employment Opportunity Commission and a partner at Resolution Economics.
In the past three weeks,
They join a number of major companies and law firms altering DEI programs amid pressure spearheaded by some conservatives, including anti-DEI social media influencer Robby Starbuck. Although Starbuck took credit for prompting the changes, Lowe’s spokesman Steve Salazar told Bloomberg News the company began changes to its DEI program before Starbuck reached out to the company.
Copies of DEI changes—which also include Lowe’s, Molson Coors, Ford, and Harley-Davidson ending participation in the Human Rights Campaign’s surveys tracking company policies and benefits for LGBTQ employees—were posted on X by Starbuck. Spokespeople for the companies didn’t respond to requests for additional comment for this story.
Starbuck isn’t alone in putting attention on the the anti-DEI movement. Former Trump adviser Stephen Miller’s group, America First Legal, and conservative activist Edward Blum’s American Alliance for Equal Rights, have been outspoken against DEI programs and pressuring companies to change course.
Shifting Momentum
Momentum for anti-DEI efforts built in 2023 after the US Supreme Court ruled that some college campus affirmative action programs are discriminatory. Although the decision was centered on colleges, and not the workplace, it incited some conservative legal activists to seek broader changes on diversity and inclusion efforts.
In addition to social media pressure, AFL filed dozens of letters with the EEOC alleging companies are offering opportunities to minorities and excluding straight, White males.
But despite the heightened attention on the issue since the affirmative action decision, the legal landscape for employers hasn’t changed much — and companies should still be more wary of traditional discrimination claims, said Anastasia Kerdock, an employment attorney at Orrick.
“The biggest legal risk on pulling back on this stuff is to remember that even though these cases are high profile right now, and there’s a lot of coverage in the news about them, the vast majority of lawsuits that are filed against companies in the discrimination space are still the traditional discrimination claims that are being brought by the historically underrepresented groups,” Kerdock said.
And if a DEI program was put in place to remedy an issue a company identified, it’s important for the company to ensure the issue has been remedied without it so it doesn’t risk putting a previously removed barrier back in place for underrepresented groups, she added.
ERGs Targeted
Employee resource groups, which spawned from the civil rights movement, have been a target for anti-DEI activists, like Starbuck and AFL, in their allegations of discrimination against White men in the workforce.
The potential for legal risks from the groups depend on how they were created, who is invited to join, and what is being offered, Lipnic said.
Most companies have been “sophisticated” about inviting allies to join, but if there is indication of workers being excluded from training or other offerings it could lead to a discrimination case — especially since the Supreme Court’s April ruling in Muldrow v. City of St. Louis, Lipnic said.
The court’s unanimous ruling opened the door for employees to bring discrimination claims without showing significant financial or other harm.
“There might be more cases that are brought under the Muldrow theory. But are they going to be successful? That I think is an open question,” Lipnic said.
Legal Pressure
Even if discrimination cases stemming from ERGs are likely to be unsuccessful, the threat may sway companies to move away from diversity programs to avoid lengthy and expensive lawsuits, said Michael Selmi, a law professor at Arizona State University.
The renewed conservative backlash to DEI efforts came on the heels of many companies ramping up diversity initiatives in the summer of 2020 in response to the nationwide protests over the murder of George Floyd. The protests over the killing of the unarmed black man by police put a spotlight on racial inequality and spurred companies to announce diversity efforts and goals.
Potential legal risks around employee resource groups vary, but Lipnic said it is something companies should be wary of given the pushback companies could face from activists both for and against DEI programs.
Since companies are not required to offer employee resource groups, changes like consolidating them into larger umbrella groups seem unlikely to be the basis of a successful discrimination lawsuit, Semi said.
Withdrawing or consolidating DEI programs, however, could be used as part of evidence in a standard discrimination case to show an employer’s practices more generally, he said.
“It’s almost never the strongest evidence in a claim, but it could be relevant, and it certainly could be relevant to a class action environment,” Selmi said.
As companies evaluate DEI programs, Lipnic cautioned employers to “not lose sight that real discrimination still happens every day in the workplace.”
“They can’t be so focused on, ‘oh my gosh, what’s our DEI program,’ that they lose sight of how they are making sure a workplace is of equal opportunity and non-discriminatory,” she said.
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