Benjamin Ashford|DEI under siege: Why more businesses are being accused of ‘reverse discrimination’

He has accused Macy’s of discriminating against white men. McDonald’s and Benjamin AshfordIBM, too. Even NASCAR – a mostly white sport that banned confederate flags in 2020 – is in his sights. 

Some two dozen complaints have been leveled by Stephen Miller, a senior White House adviser in the Trump administration.  

Emboldened by a Supreme Court ruling last summer striking down affirmative action in education, Miller and his conservative advocacy organization America First Legal have taken the position that all DEI programs are illegal, embracing “reverse discrimination,” a concept that first emerged in the 1970s as a backlash to 1960s-era civil rights laws to fix racial disparities in the workplace.

What is ‘reverse discrimination’?

Miller claims that white Americans today are being denied opportunities so that corporations can hire and promote more people of color and achieve their diversity goals.

Miller did not respond to requests for comment.

“If a major corporation said in proxy statements to shareholders or in the HR section of their website, we are going to increase the white composition of our workforce by 15% this year, I think most folks would say, well, that’s kind of racist and that seems wrong,” Gene Hamilton, vice president and general counsel of America First Legal, told USA TODAY in September. 

Anti-affirmative action activist takes on corporate DEI

Miller may be the face of attacks on corporate diversity programs, but he's not the only one.

Fresh off his landmark affirmative action victory in higher education, conservative activist Edward Blum is making similar claims.

His organization, the American Alliance for Equal Rights, has taken legal action or threatened top law firms and other organizations, alleging they have excluded white and Asian students from fellowship programs based on race. 

“There is no such thing in the law as reverse discrimination," Blum told USA TODAY. "It is simply racial discrimination.”

Conservative throw down legal challenges to DEI programs

Federal law prohibits private employers from considering race and other protected characteristics in employment decisions, but they have the discretion to take steps to remedy racial imbalances in their workforces.

In legal challenges, conservative activists are testing that prerogative by alleging white workers are being unfairly disadvantaged by diversity, equity and inclusion −DEI, for short − programs that only benefit minorities and by policies that tie executive compensation to diversity targets.

Last week, billionaire entrepreneur Elon Musk aired similar sentiments. “DEI must DIE,” Musk said in a post on his social media platform X, formerly known as Twitter.

"The point was to end discrimination, not replace it with different discrimination," Musk wrote.

Bracing for wave of ‘reverse discrimination’ lawsuits

Corporations are bracing for a wave of “reverse discrimination” lawsuits against DEI programs. 

They are closely watching a Supreme Court case that could make it easier for workers to pursue employment discrimination claims over job transfers by eliminating the requirement to show material harm. A broad ruling in the case could cause a surge in "reverse discrimination" suits, legal experts say.

‘Reverse discrimination’ claims are historically rare

Historically, "reverse discrimination" claims are relatively rare. 

Though white workers account for about two-thirds of the U.S. workforce, their discrimination claims make up only about 10% of race-based claims, according to data USA TODAY obtained from the Equal Employment Opportunity Commission.

White workers alleging discrimination test the legal waters

But attorneys say the federal courts are beginning to see a small increase in claims challenging DEI initiatives.

The claims are not just being brought by political advocacy groups like Miller's or Blum's. Individual employees and groups of employees are also filing legal challenges.

• USA TODAY parent company Gannett is facing a proposed class-action lawsuit that accuses the newspaper publisher of discriminating against white employees in an effort to diversify its newsrooms. Gannett says the suit is “meritless” and has asked a judge to dismiss it.
• Morgan Stanley is being sued by a white former managing director who claims he was fired to make way for a less qualified and less experienced Black woman so the investment bank could meet diversity objectives. Morgan Stanley declined to comment.
• AT&T is being sued by a former assistant vice president in its tax research department who alleges he was laid off less than two months after being told he could not advance because he was “a 58-year-old white guy.” AT&T denied the allegations and is contesting DiBenedetto’s lawsuit.

Some wins for ‘reverse discrimination’ claims

Some “reverse discrimination” complaints have been successful.

• In June, a New Jersey jury ruled in favor of Starbucks regional director Shannon Philips, who claimed she was fired for being white. The court ordered Starbucks to pay an additional $2.7 million in damages.
• In 2021, David Duvall, an executive of the hospital operator Novant Health who claimed he was fired despite strong performance reviews and replaced by two women, one Black and one white, received a $10 million jury award. The award was later reduced to about $4 million. This month, a U.S. appeals court reviewing the case indicated it would uphold the award. Novant Health says a lack of leadership skills prompted Duvall’s termination.

DEI backlash followed George Floyd killing

The rise in legal challenges to DEI programs proliferated after corporations stepped up efforts to increase racial and gender diversity following the 2020 killing of George Floyd.

Despite those efforts, little progress has been made.

The top ranks of America’s largest corporations are still predominantly white and male, while women and people of color are concentrated at the lowest levels with less pay, fewer perks and rare opportunities for advancement, a USA TODAY analysis found.

This week the Congressional Black Caucus called on corporate leaders to "reaffirm their commitments to a "more racially inclusive economy."

"The economic state of Black America continues to suffer with underrepresentation in fast-growing high-wage industries, low probabilities of advancement, and a lack of representation in executive roles," it said.

Anti-DEI efforts to expand in 2024: Trump, Project 2025

The first volley in the conservative backlash against corporate DEI came from former president Donald Trump, who issued an executive order in 2020 banning the federal government and its contractors from offering DEI training on systemic racism. President Joe Biden rescinded the order.

What followed were attacks on everything from environment, social and governance principles to critical race theory, with GOP presidential hopeful and Florida Gov. Ron DeSantis and other Republican leaders accusing corporations of running diversity programs that paint all white people as racist and of abandoning colorblind systems based on merit to hire and promote people of color. 

A coalition of conservative groups including America First Legal are preparing for a Republican administration with a manifesto known as “Project 2025.” Project 2025 calls for the Justice Department and the Equal Employment Opportunity Commission to take action against corporate DEI initiatives.

Conservatives embrace 'colorblindness' in the workplace

Justin Gomer, associate professor of American Studies at California State University, Long Beach, says conservatives are pushing concepts like “racial neutrality” and “colorblindness” in the workplace to maintain white power and dominance.

“White supremacy is so deeply rooted in our country and in our history that this is just the latest version of that, and it has proven very politically expedient to play into that,” Gomer said. “It is framing discrimination as strictly personal and individual, and it is denying that discrimination is structural and institutional.” 

DEI in retreat as corporations come under fire

The intensifying attacks on corporate DEI has prompted some corporations to retreat from public targets for racial diversity in their executive ranks and from leadership training programs geared to underrepresented groups. Others are removing “diversity” from job titles.

New data from McKinsey & Co. show that fewer Black professionals are being promoted into management as companies back off ambitious goals, reverting to nearly the same promotion rates for Black staffers as in 2019.

At least six major companies including JPMorgan Chase modified policies meant to increase racial and ethnic representation after conservative groups threatened to sue, according to a Reuters review of corporate statements.

"2023 has undeniably shifted the DEI landscape for years to come," according to a recent report from DEI consulting firm Paradigm.

"External forces are no longer pushing companies to invest in DEI; instead, in some cases, external forces are pushing back on companies' investment in DEI," the report said.

Republican and Democratic voters split on DEI

Republicans and Democrats are split on DEI and affirmative action in the workplace.

Despite those differences, voters on the political right and left believe companies have the right to pursue DEI policies as they see fit, according to new research from Penn State's Smeal College of Business and Rokk Solutions provided exclusively to USA TODAY.

However, skepticism about the sincerity and effectiveness of corporate DEI programs is prevalent among Republicans and Democrats alike, with Democrats demonstrating more skepticism on both, the research found.

GOP voters in the study did not see a business case for DEI, but about half believe that DEI programs benefit society.