Diversity Is Not Discrimination And Inclusion Means Everyone
NEWSLETTER VOLUME 2.11
|March 15, 2024
Diversity Is Not Discrimination And Inclusion Means Everyone
Under discrimination laws, you can't make employment decisions based on race, religion, gender and other protected factors. At the same time, employers must strive to have workforces that reflect the qualified people available to do the work.
This can be really difficult because historically, women and people of color have not had the same educational and employment opportunities as white men. This means that white men have historically been in charge and had an easier path to both power and resources.
But that's been slowly changing since the civil rights movement in the 1960's and the women's rights movement of the 1970's, which gave more people access to education, money, and autonomy. (Married women could not have their own bank accounts or credit cards until the 70's.)
Although there's a lot to argue about, it's actually working.
But it doesn't feel that way to the people who have historically had an easier path and less competition. To them, it feels like they're losing control. The world they grew up in is changing faster than it feels like they can adapt. Reality is not conforming to their expectations.
It's not a surprise that we're seeing more litigation from straight white men claiming discrimination. And if they are being passed over because of their race, gender, or sexuality, that violates discrimination laws. But if they are passed over because they aren't as qualified as others, that is not discrimination.
Most importantly, diversity is not discrimination. And inclusion means everyone. Don't you love employment law?
Meanwhile, Disney is fighting discrimination claims by both men and women based, in part, on gender.
Earlier this month, The Walt Disney Company (“Disney”) became the latest company to face simultaneous allegations that they discriminate both against and in favor of women. On February 14, 2024, America First Legal Foundation (“AFL”), a conservative legal nonprofit organization, filed a civil rights complaint urging the Equal Employment Opportunity Commission (“EEOC”) to investigate Disney based on allegations that the Company’s employment practices “deprive or tend to deprive white, male, or heterosexual individuals of employment, training, or promotions because of their race, color, sex, or national origin” in violation of Title VII. AFL’s allegations come approximately two months after a California state court certified an equal pay class action in Rasmussen v. The Walt Disney Company, a case in which plaintiffs assert Disney unlawfully pays women less than men for performing substantially similar work.
The AFL complaint characterizes Disney’s diversity and inclusion commitments and standards as unlawful “sex-based quotas,” and otherwise alleges that programs such as apprenticeships, internships and training opportunities for “underrepresented groups” (including women) are discriminatory. At the same time, Disney faces allegations from a now-certified class of women who contend Disney unlawfully underpays them as compared to similarly situated men. To the extent the EEOC investigates Disney (or some other entity or individual files suit), Disney would find itself caught in the middle of legal proceedings making opposing allegations of discrimination involving women.
This conundrum is not unique to Disney. For example, Google faced a similar balancing act a few years ago when it simultaneously was defending itself in Ellis v. Google , a class action lawsuit alleging Google systematically underpaid women, and a separate class action lawsuit against former employee James Damore who infamously sued the Company arguing it discriminated against white men. Moreover, situations like these involving Google and Disney are becoming increasingly common since the Supreme Court struck down the race-based affirmative action programs at Harvard and UNC last summer in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (“SFFA”). Indeed, the SFFA decision has sparked a flurry of activity aimed at corporate diversity initiatives, including several “reverse discrimination” lawsuits and other civil rights complaints similar to the one attacking Disney’s diversity efforts, such as a recent complaint by AFL against the National Football League (“NFL”). In the NFL complaint, AFL alleges the NFL’s “Rooney Rule,” which requires teams to interview at least two minority candidates for head coach and general manager vacancies before making a hiring decision, is “illegal and racist.”
Given the intense scrutiny employers now face from both sides, now is not the time to overreact. Instead, savvy employers looking to mitigate legal risk are investing time and resources into reviewing DEI programs and policies to ensure they are legally compliant, while at the same time remain committed to promoting equal employment opportunity and equitable workplace practices for all employees, regardless of race or gender.
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