?Texas Gov. Greg Abbott recently sent a memo to state agencies and public universities, ordering them to stop applying diversity, equity and inclusion (DE&I) policies in hiring, the Texas Tribune reported. The memo said DE&I policies violate federal and state anti-discrimination laws, and hiring cannot be based on factors other than merit, according to the Tribune. The memo claimed that DE&I efforts favor some demographic groups while putting others at a disadvantage.
“It doesn’t specify what about the DE&I programs and initiatives are so problematic,” said Michael Green, director of the workplace law program at Texas A&M University School of Law in Fort Worth, Texas. “I’m not aware of any law that makes DE&I programs illegal.”
“Governor Abbott’s statement that DE&I policies in hiring violate anti-discrimination laws will likely be challenged, if Texas passes legislation that codifies his views,” said Kimya Johnson, an attorney with Jackson Lewis in Philadelphia. “Courts have been clear in ruling that the mere presence of a DE&I initiative or program is not, per se, violative of Title VII [of the Civil Rights Act of 1964] or similar anti-discrimination laws. Applying long-standing legal precedent, a complainant still bears the burden of proving that a given DE&I program, hiring decision, or other alleged adverse action was, in fact, discriminatory toward them and that they suffered harm as a result. It will be interesting to see if courts change this burden-of-proof paradigm as more states seek to pass laws challenging DE&I efforts.”
Abbott’s office did not respond to a request for comments. Texas had 328,119 full-time state employees in 2022. About 58 percent of them were at public institutions of higher education, while 42 percent worked at state agencies.
Reverse Discrimination
In general, DE&I programs are intended to prevent discrimination and promote fairness, but sometimes people see it as a zero-sum game where “if you benefit, I lose,” Green said.
In recent years, some lawsuits have claimed that diversity initiatives discriminate against white men. “Opponents of workplace diversity efforts have been litigating these types of reverse discrimination claims for decades, and they have largely been unsuccessful,” said Stacy Hawkins, a law professor at Rutgers Law School in Camden, N.J. “Eighty-two percent of cases challenging workplace diversity efforts that were not determined to be affirmative action plans were decided in favor of the defendant/employer. This data suggests that Governor Abbott is vastly overstating the case to say that all diversity efforts are, per se, illegal under federal employment law. Moreover, the reason he is overstating the case is because he is conflating modern workplace diversity efforts with historic affirmative action practices, when the two are quite different.”
Abbott and others are “making claims that DE&I policies discriminate because they’re trying to stoke fears among the public and play to their base,” said Julie Park, an associate professor at the University of Maryland College Park, specializing in racial equity in education.
DE&I efforts aren’t the same thing as affirmative action or racial quotas. DE&I means having workplace policies intended to increase outreach to and representation of groups that have historically faced discrimination, including women, racial minorities, LGBTQ individuals, veterans and people with disabilities. With DE&I initiatives, businesses analyze their demographic data but don’t set a fixed quota for hiring certain groups. DE&I policies may include providing resources for underrepresented groups, setting diversity goals in hiring or establishing thresholds so that a certain number of job candidates in underrepresented groups are interviewed.
A recent survey from Aon showed that 74 percent of companies across 55 countries had an internal DE&I definition and policy. Likewise, 74 percent of North American employers tracked the diversity of new hires, according to 2021 research from SHRM and Harvard Business Review.
Other States
The move in Texas uses a similar argument to an executive order former President Donald Trump signed in 2020 to prohibit federal agencies, federal contractors and the military from providing DE&I trainings to workers, claiming they are divisive and discriminatory. President Joe Biden repealed that order in 2021.
It remains to be seen whether other states will decide to follow Texas’ lead and stop state agencies and public universities from using DE&I policies in hiring. “It wouldn’t surprise me if you see other jurisdictions and states” pursue similar actions, Green said.
In August 2022, a U.S. district court blocked a portion of Florida’s Stop the Wrongs to Our Kids and Employees (WOKE) Act, a controversial bill backed by Gov. Ron DeSantis that restricts how companies and schools can discuss diversity and inclusion.
In a politically divided country, support for DE&I initiatives comes at the same time as opposition.
“Within DE&I law and practice, we have been witnessing two movements that are in conflict for several years,” Johnson said. “There is a progressive movement aimed at expanding DE&I-oriented laws and regulations that is being countered by a DE&I regression movement aimed at retracting or restricting those DE&I efforts. It would be short-sighted to view Governor Abbott’s statements in isolation.”
“I do think we’re seeing more pushback against DE&I-related work in the last year or two,” Park said, though she noted that “pushback has always existed.”