Professor Michael Selmi’s 2025 essay, DEI and the Private Workplace, examines some of the court rulings in the “upwards of one hundred cases filed” challenging the legality of workplace diversity, equity, and inclusion (DEI) practices after the Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, (“SFFA”). (Pp. 3-4 n.7.) SFFA concerned challenges to affirmative action practices in the college admissions setting as violating the U.S. Constitution’s Equal Protection Clause and Title VI of the Civil Rights Act. In analyzing DEI cases, Selmi notes “the long history of workplace affirmative action which differs significantly from the educational setting.” (P. 1.) Nonetheless, advocates have relied on SFFA in suing private sector employers and arguing their DEI practices violate federal discrimination statutes. (Pp. 3-4 n.7.) In his essay, Selmi examines how much SFFA “affects private efforts to diversify a workforce and what legal guidance there is on those efforts.” (P. 5.) Selmi also explains how the anti-DEI workplace cases are mostly like so-called reverse discrimination cases, that most of those anti-DEI lawsuits have failed, and that federal law still permits private-sector employers to pursue some forms of DEI.
Selmi starts with “debates” that arose during “the passage of the Civil Rights Act of 1964″ regarding how “affirmative action” would affect the development of employment discrimination law. (P. 1.) Even back then, there were “concerns that white men would be passed over by unqualified Blacks or other minorities, a view that was reflected in some of the early cases” after Title VII’s passage. (Pp. 1-2.) According to Selmi, in cases from “1979 to the late 1980s, the Supreme Court” read Title VII of the Civil Rights Act of 1964, which prohibits some kinds of employment discrimination, to allow employers, under certain circumstances, to adopt affirmative action plans based on race or sex. United Steelworkers v. Weber, Johnson v. Transportation Agency. (Thereafter, some lower courts extended those cases to cover race discrimination challenges to affirmative action plans under 42 U.S.C. 1981 (e.g. Setser v. Novack Inv. Co., 657 F.2d 962, 966-67 (8th Cir. 1981); Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d 486, 499 (3d Cir. 1999) (P. 25 nn. 98-99.)) As a result, there have been “very few challenges, particularly in the lower courts,” to private-sector employer affirmative action plans. (P. 2.) Instead, most of the successful workplace affirmative action challenges argued that public sector employers, by adopting such plans, violated the Equal Protection Clause of the U.S. Constitution, which does not apply to private sector employers. Id.
Selmi finds that “many of the current challenges to DEI programs closely resemble” cases from those “early years of Title VII.” (Pp. 27-28.) Those were “reverse discrimination cases in which most commonly white individuals allege that they were the victims of discrimination.” Id. Those cases “have traditionally been difficult to win” which is not surprising as “discrimination claims of any type are notoriously difficult to win.” (P. 27.)
But after SFFA, the challenges have moved away from affirmative action complaints to reverse discrimination claims based upon DEI practices. Selmi asserts that these actions do not clarify what DEI practices are, other than asserting broadly any workplace actions that are “invariably race conscious.” As Selmi clarifies, DEI is not just a weak form of affirmative action. Rather, if Title VII permits a voluntary affirmative action plan, it must at least aim to correct a manifest racial or gender imbalance in traditionally segregated job categories. In contrast, DEI practices aim more broadly to create an inclusive workplace where employees want to continue working.
In reviewing “litigated cases to date [at least through early 2025, P.3 n.7],” Selmi concludes that “significantly more of the cases have been unsuccessful as opposed to successful.” (P. 31.) He acknowledges some risk-averse employers have responded by changing or abandoning DEI practices just to avoid litigation. Near the end of the essay, Selmi reviews two cases, decided after SFFA, where anti-DEI challenges arguably succeeded: Am. All. for Equal Rts. v. Fearless Fund Mgmt., LLC, 103 F.4th 765 (11th Cir. 2024) (preliminary injunction of venture capital fund’s $20,000 grant contest for Black women businesses for likely violating 42 U.S.C. § 1981) and Duvall v. Novant Health, Inc., 95 F.4th 778 (4th Cir. 2024) (approving Title VII jury verdict for white male replaced by non-white employee during employer efforts to meet “three-to-five year goals to diversify … executive and senior level teams”) (P. 43.)
For Selmi, SFFA likely did not affect the Fearless Fund and Novant Health outcomes. Instead, the Fearless Fund case coincided with a series of challenges to diversity fellowships, scholarships, internships, and financial programs. Many organizations, including Fearless Fund, can avoid liability under anti-discrimination laws by focusing on awarding their grants, scholarships, or other benefits to individuals based on other grounds, such as socio-economic status, instead of race or sex. Likewise, the result in Novant Health followed those small percentage of employment discrimination cases with enough evidence to get to a jury trial, similar to how most discrimination lawsuits worked before SFFA.
Finally, Selmi describes several cases that have challenged employer-mandated DEI training. Selmi finds most of these cases “have failed and broad claims that DEI programs are inherently discriminatory are likely to fail regardless of the underlying claim.” (P. 47.) He also concludes that “private employers that want to take steps to diversify their workplace and enhance that diversity continue to have the legal runway to do so, particularly if those efforts are … designed to enrich the workplace without relying on race or gender conscious preferences.” (P. 53.) Whether you agree or not about challenging the legality of DEI, you should read Selmi’s essay. If businesses continue to keep defeating anti-DEI advocates in these lawsuits throughout 2026, both sides, as well as workplace law scholars, invested in reviewing these issues, may find Selmi’s essay helpful, as I did, in analyzing any ongoing legal challenges.
