| DEI, or 'Diversity, Equity, and Inclusion,' is the term that companies and institutions like to use when talking about what they do to make sure that people of all backgrounds can thrive at their organizations. Common DEI initiatives include: internal gender and racial pay gap analyses; mentorship programs, resource groups to help employees from underrepresented backgrounds develop a sense of community, and so on. Some programs are more successful than others. Some create meaningful change and some are just empty corporate gestures.
Stephen Miller, the 38-year-old far-right political advisor who helped oversee the Trump administration's policy of separating children from their parents at the US border, now runs a law firm called America First Legal that's leading the crusade against corporate diversity initiatives. America First has filed a few lawsuits and released a slew of press releases in which it asks the Equal Employment Opportunity Commission (EEOC) to investigate everything from NASCAR's mentorship program for female drivers to Kellogg's attempts to hire more people of color.
But America First can't force the EEOC to investigate a company, it can only ask them to. What's more, its complaints "are not based on what the existing law is but what the organization thinks it should be," explains Michael Selmi, a law professor at Arizona State University who specializes in employment law and civil rights. They're coming on the heels of last year's US Supreme Court decision that effectively banned affirmative action in college admissions, though they're focused on a different part of the Civil Rights Act.
Title VII, as it's known, protects job applicants and employees from discrimination based on race, color, religion, sex and national origin. The specifics of America First's complaints vary by company but many of them boil down to the same argument: that corporate efforts to hire more women or people of color are de facto discrimination against White men. Take, for example, America First's complaints against the toy companies Hasbro and Mattel. The firm claims Hasbro's stated goal of raising its "racially and ethnically diverse" representation to 25% by 2025 is illegal. Meanwhile, Mattel attracted its ire because its "website explicitly states that management is working to increase 'representation of women' and "representation by ethnicity [sic]" at all levels."
It's long been understood (ever since the 1987 Supreme Court decision, Johnson v. Transportation Agency) that organizations are allowed to make conscious efforts to diversify their workforce but they cannot employ quota systems to get there. In other words, a company can say that it wants people of color to make up 25% of its workforce by 2025. It can change its recruiting tactics or job requirements to ensure a more diverse applicant pool in an effort to get there. But it can't reserve 25% of its open positions for applicants of a certain race. That's why, Selmi says, many of America First's EEOC requests are likely to go nowhere.
These EEOC requests are not the only way anti-diversity firms are going after businesses. The conservative nonprofit American Alliance for Equal Rights (run by Edward Blum, he of anti-affirmative action fame) has filed several lawsuits, including one against Fearless Fund, a venture capital firm owned by two Black women that ran a program offering $20,000 grants to Black female entrepreneurs. "Would a different venture capital fund's requirement that only White men are eligible for its funding and support be fair and legal?" Blum told Bloomberg when the lawsuit was first filed. Yet, according to Deloitte, just 1% of investment partners are Black women (up from 0.25% in 2020) and Black female entrepreneurs receive less than 0.1% of all venture capital funding. So why try to shut down a program that offers the monetary equivalent of a used Honda?
Blum told the New York Times that "an individual's race and ethnicity should not be used to help them or harm them in their life's endeavors." If that's his aim, it raises the question of whether there could be a better, more effective way to work toward that goal rather than suing one of the few Black-owned venture capital funds that exist.
Fearless Fund's primary defense is that their grant is equivalent to a charitable donation and as such they're free, under the First Amendment, to give their money to whomever they want. If they were forced to "give to everyone or no one," as Jason Schwartz, one of Fearless Fund's lawyers, pointed out during a hearing on Wednesday, then organizations such as the Charitable Irish Society would also be forced to fold. The success of this argument depends on whether a VC fund counts as a charity or not. "A racially exclusive program is going to be more difficult to justify," says Selmi, "I don't know how that's going to play out." Eventually, the Fearless Fund lawsuit (or one like it) may wind up before the US Supreme Court. But right now, the more immediate danger companies face is a much more nebulous one: angering the far-right wasp's nest. Which is why so many companies are scaling back their diversity initiatives, or at least the ones they talk about publicly. They have to weigh their options. Do they want a more diverse workforce? Or do they want to avoid having to deal with Stephen Miller? | 
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