Employee Survival Guide® - Corporate DEI Causes Racism and Reverse Discrimination

Episode Date: March 12, 2024

Could your company's efforts to foster diversity be paradoxically fueling discrimination? Unpack the complexity of corporate DEI programs with us, as we scrutinize their waning popularity and the alarming suggestion that these well-intentioned initiatives might actually be nurturing a new kind of racism and reverse discrimination. In an era where affirmative action and its ripple effects are under the Supreme Court's microscope, we dive into the legal and ethical quagmire faced by businesses striving to balance inclusivity with anti-discrimination laws. Through candid conversations and real-life narratives, we peel back the layers on the legal tightrope that companies walk as they navigate these transformative times.This episode is not just a critique but a journey to understand the soul of corporate America's struggle with diversity. Listen closely as we confront the thorny issues surrounding race-based quotas and metrics, and how they might betray the very principles of equality and meritocracy they aim to uphold. With references to historical civil rights statutes and an analysis of current legal perspectives, we aim to provide a nuanced view of the ongoing debate. We don't shy away from the contentious—the experience of employees who feel marginalized by DEI initiatives, the debate over the validity of tools like Harvard's implicit bias test, or the case of alleged reverse discrimination at Morgan Stanley. Join us for an unflinching look at the challenges of achieving true equity in the workplace without infringing on individual rights.Links:https://capclaw.com/employers-dont-want-dei-to-succeed/chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https:/www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdfhttps://www.pionline.com/esg/wall-streets-dei-retreat-has-officially-begunhttps://www.wsj.com/articles/reports-of-dei-death-are-greatly-exaggerated-implicit-bias-test-systemic-racism-f7122674?st=y9son25mrjp7w00&reflink=desktopwebshare_permalinkhttps://capclaw.com/wp-content/uploads/2024/03/Meyersburg-v-Morgan-Stanley.pdf If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.

Hey, it's Mark here. Welcome to the next edition of the Employee Survival Guide, where I tell you, as always, what your employer does definitely not want you to know about, and a lot more. Hey, it's Mark here. Welcome to the next edition of the Employee Survival Guide. Today's topic is Corporate DEI Causes Racism and Reverse Discrimination. Pretty hot topic these days. Less than a year ago, I wrote an article titled, Employers Don't Want DEI to Succeed. To my humor, DEI died a quick death in both employees and the pundits cheered. Many observers believe DEI died due to oversaturation by corporate vendors peddling for more consulting dollars. Many employees believe the DEI programs mandated on them were a joke and ignored them entirely. Others believe DEI died because of a recent U.S. Supreme Court decision on June 29, 2023,

captioned as Students for Fair Admissions, Inc. versus President and Fellows of Harvard College, permanently banning affirmative action in the education setting, but not in the employment setting. Not yet, anyway. The FFA decision, as it's known, blasted a hole through the bottom of the DEI boat, and all employers noticed. Employers are now panicking about being sued for reverse discrimination caused by their DEI policies that adversely impact white Caucasian employees. According to a Bloomberg article on March 4, 2024, Wall Street's DEI retreat has officially begun. Large financial institutions have revamped their DEI programs.

Goldman Sachs Group opened the Possibility Summit to all students, not just Black students. At Bank of America, the bank modified internal programs previously focused on women and minorities to apply to all employees. At Bank of New York Mellon, their lawyers advised them to get rid of diversity metrics or be sued for reverse discrimination. Tesla removed diversity language from minority employees in a regulatory filing. According to the Belvoir article by Bloomberg, bankers and lawyers contend they have little choice but to reframe and pause new diversity initiatives and get ahead of the blowback and potential litigation. new diversity initiatives and get ahead of the blowback and potential litigation, end quote. In other words, companies are trying to prevent further DEI racism and reverse discrimination cases that are being threatened by my law firm and others. Anti-discrimination employment statutes

are colorblind. Why did employers believe they were not? Companies will likely need to adjust their DEI programs to ensure they are race neutral on their face. This might involve focusing on broader criteria like socioeconomic backgrounds or educational experiences from disadvantaged backgrounds. The emphasis may shift towards creating a more inclusive workplace culture and ensuring equal opportunities for advancement for all qualified candidates, regardless of race. Employer DEI programs with quotas and metrics flip the middle finger at the rule of law in this country, such as Title VII of the 1964 Civil Rights Act and the Civil Rights Act of 1866, which is commonly known as 42 U.S.C. 1981, the Civil War Reconstruction Statute designed to enfranchise previously enslaved blacks in this country and allowed them to run businesses.

Quite literally, the corporate DEI program shot out of the gate with racial quotas and race-baiting challenges that white Caucasian employees were inherently racist. Some readers may be offended by this view, which is not mine, yet this is what employees have shared with me over the years regarding DEI programs instituted by their employers. In a recent Wall Street Journal article titled Reports of DEI's Death are Greatly Exaggerated, the author discussed how DEI programs use faulty implicit bias testing with employees. If you are curious whether you hold an implicit bias, racial bias, Harvard University has the very institution that focuses the Supreme Court's decision on the affirmative action case. They have an implicit bias test that you can take to determine if you hold a race bias. And there are other forms of bias testing on their website you can explore.

You may feel uncomfortable about this test, how this test makes you feel, select an answer you would not otherwise choose because it offers no other options. At least that's how I felt when I took it. You may feel a bit taken advantage of by the test and how it forces an answer on you that you may disagree with. Again, I took the test and that's how I felt about when I took it. How is this test legitimate? It's not. And that's the point of the Wall Street Journal article.

You can read the article for yourself. And I encourage you to take the implicit bias test and see how you feel they give you a result about your implicit bias whether you have one or not the primary reason dei programs are in retreat is because the u.s supreme court's decision the sffa decision declared that racial preferences and metrics in affirmative action programs in the education setting are inherently unconstitutional. Chief Justice Roberts wrote for the court, quote, eliminating racial discrimination means eliminating all of it. An equal protection clause we have accordingly held applies without regard to any differences of race or of color or of nationality. It is universal in its application, for the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of

another color. The court went on to say, as the court has repeatedly affirmed, racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification. And the court went on to say, finally, in view of the Constitution, in the eye of the law, there is in this country no superior dominant ruling class of citizens. There is no caste here. And they're referring to a caste system commonly found in other countries like India. Our constitution, the court said, is colorblind and neither knows nor tolerates classes among citizens, end quote. Employers now see the writing on the wall and are revamping DEI programs to provide a colorblind approach to diversity, equity, and inclusion.

Unfortunately, the statistics on current reverse race discrimination cases are nearly non-existent. I looked. Of course I looked. The only relevant metric we have is the one maintained by the U.S. Equal Employment Opportunity Commission. But as you will see from the information from their website, it is limited and not specific to reverse race discrimination cases and only reports of data up to 2022. On August 29, 2023, a lawsuit alleging reverse discrimination against Morgan Stanley was filed in the Southern District of New York by Kevin Myersburg. In that case, a white employee named Kevin Myersburg was unlawfully terminated from his role as a managing director and head of executive services and

replaced by a black female with significantly less experience and qualifications for the position. That's according to his complaint. Myersburg was told by another executive regarding the reason for his termination that, quote, it was because of diversity and inclusion initiatives by the company, again, according to his complaint. Morgan Stanley moved to compel arbitration, and the case was stayed in federal court pending the outcome of the arbitration case, which is the common procedure. Myers-Berg was brave enough to publicly disclose Morgan Stanley's allegedly unlawful DEI practices before being swallowed up by forced arbitration. You can read the entirety of the complaint that he filed, and I'll include it in the show notes so you can see what he was alleging

and what the company was doing with respect to its DEI policy. Myersburg's experience is very common and appears to play out in many of my cases. Myers-Berg experience is very common and appears to play out in many of my cases. Specifically, I encounter many well-qualified white Caucasian employees and executives who have had a brilliant career with their employers, but suddenly hit a wall of DEI selectivity that does not favor them based on their race. Of course, I also have cases involving sex and other gender and age and sexual orientation, but we're focusing on this article having to do with racism. I always know when a DEI racial quota is being used against a client, when the high-performing employees suddenly cast down as underperforming, while lesser experienced Black employees are given preferential treatment.

Typically, employers start making stuff up regarding performance because they cannot find any legitimate fault with the employee's performance. Accenture, the large consulting firm, stated in 2020 that the goal in the United States is to increase representation of African- and Black and Hispanic Americans and Latinx people overall and managing directors. By 2025, Accenture is set to increase the representation of African American and Black people from 9% to 12%. That sounds like a quota to me, doesn't it? And the representation of Hispanic Americans and Latinx people from 9.5% to 13%. Again, sounds like quotas and metrics. In light of the U.S. Supreme Court's decision of zero tolerance of quotas in the affirmative action setting, Accenture clearly identified quotas for its own employees and created the basis of a reverse discrimination in the employment setting.

the basis of a reverse discrimination in the employment setting. I would bet to ensure that Accenture doesn't publicly disclose that information today in light of the Supreme Court's decision. The examples I find in client fact patterns stand out like white elephants. Employers are literally taking the risk that no one would notice the reverse discrimination when they instituted DEI programs back in 2020 in the light of George Floyd's murder. I went on to close the article with a comment from our good friend Forrest Gump, and says, stupid is as stupid does. As Justred Roberts correctly stated in the majority decision, the SFFA decision, quote, racial classifications are simply two permissions to permit, end quote.

Corporate DEI programs must be racial neutral or face the wrath of federal lawsuit to expose unlawful quota practice. The use of DEI programs obviously came about very, very quickly after the social chaos that resulted in the aftermath of George Floyd's murder. We know the results of George Floyd's murder and what happened in the criminal prosecution. The Supreme Court's decision literally follows most employers, if not all of them, to look at their risky business of setting quotas and diversity. But the Supreme Court has now put a wrench in that process for them because, well, not yet anyway, because the Supreme Court has yet to declare in the employment setting that quotas like affirmative action are illegal and there's a zero tolerance policy for it. So it will play out. now, as you can hear from the article in the podcast episode, is that corporations are retreating en masse away from this aspect, coming up with more race neutral and, you know, criteria based upon, you know, qualifications, et cetera, instead of the overt statement of, you know, promoting Blacks to a certain percentage or promoting Hispanics to a certain percentage, or even women for that matter, again, to a certain percentage.

So the DEI process will likely continue, but in a lightly, obviously, drastic different form. I, whatever its future is, this country already had DEI present in the workplace. And it took the form of what's called EEO policies. What was so drastically apparent to me about the whole DEI process was it literally said that, you know, the statutes we have in the books are not enough. Like, you know, there's something wrong with them because we currently have discrimination that continues. there's something wrong with them because we currently have discrimination continues well uh that's the 1964 civil rights act has never been amended to uh you know it's always been written as the way it has we've added things to it um such as pregnancy discrimination and

recent statutes in 2023 regarding pregnancy pregnancy leave cetera. But the statutes are relatively unchanged since the beginning when we enacted them. And there was no claim that they weren't being enforced incorrectly or the courts or, you know, something's wrong with them. But, you know, what really happened, folks, was the issue that companies had to get on top of this marketing blitz or at least fear being canceled that they weren't doing something to show their employees and stockholders that they were ahead of the or in front of the game in terms of DEI or in doing something for social justice. And that's how it erupted, in case you don't remember. It's not too long ago. So that's what prompted it. But then what

they ran into was this major problem is that they, it just simply said, well, we're just gonna, well, commit racism. And that's the problem. And that's why there's now this retreat. There's no current US Supreme court decision, uh, post SFA, uh, that said, you know, it applies to employment setting. So why are employers doing all this? Why are all these financial firms on Wall Street retreating?

It's because they know they did it wrong. And that's the point. They know that they went so far to the left of this, so far outside the scope of the rule of law, and just overtly did this to people. It caused a lot of people a lot of anguish in the workplace and resulted in a few reverse discrimination cases. So that's the story about DEI and where it's at and how it causes discrimination because you can't have DEI policies that have race quotas and metrics.

It's illegal to do that because what are you really doing here? You're saying that one race is more favorable over another. That's the problem. That's what Justice Roberts indicated. And I grabbed his quotes from the decision because I wanted to make it clear that you understood that it's zero tolerance for race, period. And the story, same goes for sex, sexual orientation, gender, disability, and the like. So the statutes say zero tolerance, none, zero. You can't select one over the other. So there you have it.

You're more informed today. And look for the next topic to agitate your cranium. Thanks. If you like the Employee Survival Guide, I'd really encourage you to leave a review. We try really hard to produce information to you that's informative, that's timely, that you can actually use and solve problems on your own and at your employment. So if you'd like to leave a review anywhere you listen to our podcast, please do so. And leave five stars because anything less than five is really not as good, right?

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