Legal Group Warns ‘Woke Corporations’ of ’Illegal' DEI Programs After Supreme Court Ruling

Justices of the Supreme Court pose for their official photo at the Supreme Court in Washington on Oct. 7, 2022. (Front L–R) Justices Sonia Sotomayor and Clarence Thomas, Chief Justice John Roberts, Justices Samuel Alito and Justice Elena Kagan. (Back L–R) Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson. Olivier Douliery/AFP via Getty Images

The legal nonprofit organization America First Legal (AFL) and its Center for Legal Equality has put corporations “on notice” that all diversity, equity, and inclusion (DEI) programs are now “illegal.”

In a July 3 statement, AFL cited the Supreme Court’s recent decision ruling that race-based admissions policies at U.S. colleges are unconstitutional after a lawsuit was filed against the admissions practices—also known as affirmative action policies—of Harvard and the University of North Carolina.

The Supreme Court, in a 6–3 decision (pdf), said that colleges couldn’t include race considerations in their admissions processes, something that Harvard, for example, had been using for years to maintain admissions from minority students.

The lawsuit against the schools was filed by Students for Fair Admissions. AFL submitted an amicus brief in the case (pdf).

Specifically, the court stated in its opinion that Harvard and the University of North Carolina’s admissions policies had violated the 14th Amendment’s equal protection clause.

The judges further noted that “eliminating racial discrimination means eliminating all of it” and that the equal protection clause “applies without regard to any differences of race, of color, or of nationality—it is universal in its application.”

While the Supreme Court’s decision pertained to colleges across the nation, many experts believe it could have implications for businesses as well, as many have in recent years adopted DEI policies on the basis of gender, race, and sexual orientation.

People walk on the campus of the University of North Carolina at Chapel Hill on June 29, 2023. Eros Hoagland/Getty Images

‘Woke Employers’ Using ’Flowery Language’

“Such programs have violated the law since their inception, but based on today’s Supreme Court decision, there is no excuse for them going forward,” AFL said in its statement.

“Justice [Neil] Gorsuch’s concurrence (in which Justice [Clarence] Thomas joined) affirmed that these principles apply equally to the Civil Rights Act of 1964, which prohibits discrimination in education and employment on the basis of race, color, religion, sex, and national origin,” the organization said.

“DEI programs and corporate race, national origin, and sex-based balancing initiatives in hiring and contracting lack sufficiently focused and measurable objectives warranting the use of immutable characteristics, unavoidably employ race, national origin, or sex in a negative manner, involve (indeed are predicated on) stereotyping, and are utterly without meaningful endpoints.”

Such programs, the group said, can’t effectively be used with guarantees that they won’t violate the equal protection clause.

“As Justice Gorsuch explained, the Civil Rights Act makes it illegal to ‘intentionally treat one person worse than another similarly situated person because of his race, color, or national origin,’” the organization said before taking aim at what it called “woke employers” using “flowery language and empty rationalizations to mask their pernicious discrimination.”

AFL President Stephen Miller, who served as a White House adviser during the Trump administration, vowed that the organization will vigorously pursue legal action against entities and institutions that are “perpetuating woke fascist bigotry” against Americans.

The legal group went on to list a number of companies that it claimed to be doing “exactly what the Civil Rights Act forbids,” including retail giant Amazon, as well as Alaska Air,  BlackRock, McDonald’s, Morgan Stanley, Kroger, Lyft, Starbucks, Unilever, and more.

A 12-ounce can of Bud Light on a railing at the World Equestrian Center in Ocala, Fla. on May 26, 2023. T.J. Muscaro/The Epoch Times

‘No Place to Hide’

Anheuser-Busch, the parent company of Bud Light, also was included in the list. The company has been battling with declining sales since its partnership with transgender activist Dylan Mulvaney for a campaign in March.

Disney, which has been embroiled in a legal battle with Florida Gov. Ron DeSantis over the state’s Parental Rights in Education Bill, was also on the list.

“Radical corporate CEOs, law firm partners, medical directors, and diversity consultants, beware—there’s no place to hide. AFL will find you and hold you accountable for any discriminatory actions you take,” the organization concluded.

The notice from AFL comes as experts have suggested that the Supreme Court’s decision could prompt companies that were making race a priority in employment to rethink their hiring strategies.

Speaking to Fox News on July 3, Will Hild, executive director of the nonprofit Consumers’ Research, said that there is now simply “no question that affirmative action, racially based hiring and promotion schemes violate the Civil Rights Act.”

“And you no longer have this even potential loophole of the affirmative action jurisprudence. I think one, you’re going to see a lot of companies, their legal compliance officers, are going to review what their DEI departments are doing and probably tell them to cut it out,” Mr. Hild said.

“I think you'll see a lot of companies who might even get rid of their DEI departments because the philosophy around the DEI is almost directly in contradiction with a law to begin with.”

Elsewhere, Gene Hamilton, general counsel for America First Legal, told the network that the court’s decision may also signal the “writing on the wall” for corporations that have been using “racial preferences” in their hiring models.

“Tread carefully,” Mr. Hamilton said. “There is a lot of liability for employers in this space.”