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Invoking the First Amendment to defend initiatives aimed at boosting workplace diversity, equity, and inclusion (DEI) has the potential to set a precedent that may ultimately undermine other civil rights objectives.
Federal Appeals Court Ruling
In a recent legal development, the US Court of Appeals for the Eleventh Circuit rejected the First Amendment defense put forth by Fearless Fund Management LLC in a lawsuit challenging its grant contest for Black women entrepreneurs. The court ruled that the fund’s actions violated Section 1981 of the 1866 Civil Rights Act, which prohibits race discrimination in contracts, and fell outside the protections afforded by the First Amendment.
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Implications for Workplace Diversity Efforts
Despite the setback for DEI proponents, employment attorneys noted a potential upside for diversity efforts in workplaces. Lauren Parris Watts, a partner at Seyfarth Shaw LLP, emphasized the slippery slope of using the First Amendment as a defense for exclusionary programs. She warned that such a defense could be exploited by racist or anti-LGBTQ+ groups to justify discrimination.
The Creative Argument for First Amendment Defense
Ishan Bhabha, co-chair of Jenner & Block LLP’s DEI protection task force, expressed concern about the broader implications of upholding a First Amendment defense in this context. He pointed out that such defenses are typically reserved for expressive conduct closely tied to specific organizational actions, similar to symbolic speech.
Fearless Fund’s Position
Fearless Fund argued that its grant contest was a form of charitable giving protected as expressive conduct under the First Amendment, aimed at highlighting the significance of Black-women-owned businesses. However, the court rejected this argument, likening the grant process to discriminatory hiring practices.
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Balancing Free Speech and Civil Rights
Defending diversity initiatives on First Amendment grounds is complex, as it involves balancing free speech with anti-discrimination laws. Derick Dailey of Crowell & Moring LLP highlighted this tension, noting the intricate interplay between these legal principles.
Textualism and Legal Interpretations
The Fearless Fund case, like other challenges to DEI efforts, hinges on the interpretation of Reconstruction-era laws designed to dismantle racial barriers. Advocates argue that such initiatives are remedial measures to address systemic racial disparities. A textualist interpretation by the Supreme Court, focusing on the original meaning of Section 1981, could potentially support the legality of such grant programs.
Adjusting DEI Strategies
As courts scrutinize DEI initiatives more closely, employers must develop legally sound policies. Recent rulings, such as the Tenth Circuit’s dismissal of a lawsuit against Colorado’s DEI training program and the Fourth Circuit’s affirmation of a biased verdict in favor of a White male employee, underscore the importance of adhering to anti-discrimination laws.
Future of DEI Efforts
Investors and companies committed to DEI may need to refine their strategies to withstand legal challenges. This could involve removing explicit references to racial minorities from eligibility criteria while focusing on supporting diversity. However, the ongoing legal challenges may hinder corporate America’s efforts to promote inclusivity.
Parris Watts expressed concern that cases like the Fearless Fund ruling could deter corporations from supporting DEI initiatives, ultimately affecting the progress made in fostering diverse and inclusive work environments.
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