The latest Supreme Court decision could throw a wrench into corporate DEI programs

Last week, a Supreme Court decision lowered the bar required for workers to prove harm when it comes to filing employment discrimination claims. 

Although the ruling in Muldrow v. St. Louis was heralded as good news for workers, attorneys say it may also be used by anti-DEI groups to target corporate diversity programs, creating another compliance headache for HR in the process.

“Opponents of DEI are going to try to weaponize the decision,” Lauren Hartz, a partner at law firm Jenner & Block, tells Fortune. “They’re not going to find as much ammunition as I think was predicted, or as they may have hoped, but we’re certainly going to see as this decision takes hold in lower courts, and we have specific case law based on it, whether there was anything that they can squeeze out of the court’s decision.”

The crux of that DEI attack comes from the new lower bar for workers to prove “harm.” In the past, the justice system has required that employees show things like demotions, firings and pay cuts to prove discrimination affected them. But now, they need only prove that they experienced “some harm” from an employment decision. That means that corporate DEI programs could potentially be at risk if workers can prove they experienced some kind of harm because they didn’t qualify for that initiative. For example, a white male employee could file a suit for being excluded from a mentorship group for women of color.

“Before Muldrow, a court very likely would have rejected that claim, either because it would have found that that wasn’t a term or condition of employment, or, as was more often the case, that it just wasn’t significant or material in terms of that employee’s status,” says Hartz. Now, we may see “courts having to confront trickier questions about whether something like that is a term and condition because in that case, all we need is some or any harm under today’s standard.”

That means it’s imperative for HR leaders and their teams to develop and follow best practices for any new and existing DEI initiatives at the company. CHROs should ensure that their teams continue non-discrimination and equal employment training, Morgan Pike Epperson, an attorney at Ogletree Deakins, tells Fortune, and expand these to cover programs like mentoring or leadership development initiatives designed for minority groups. One example of how a company can strategically approach diversity initiatives could be ensuring that all employee resource groups are open to members of the community it serves, and allies of that group, so that anyone can join.

“It’s important to review all of the different DE&I programs that are out there, the different DE&I statements that employers have made, and just make sure that they’re all cohesive and that we feel comfortable with what we’re putting out there based on this new avenue of potential risks,” says Pike Epperson.

HR teams should also frequently communicate with internal stakeholders such as the legal department, DEI, and talent acquisition to ensure that all of these different groups are aligned on whatever programs or messaging the employer launches. 

“For HR people, it’s just one more thing to add,” says Pike Epperson. “I don’t think it’s necessarily earth-shattering or anything like that, but it’s going to continue the increased scrutiny that DE&I has been receiving over the last year or so.”

Paige McGlauflin
paige.mcglauflin@fortune.com
@paidion

Today’s edition was curated by Emma Burleigh.

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