Opponents of diversity programs are employing an unexpected tool in their litigation: a law dating back to the American Civil War era. A spate of suits filed on behalf of white workers in the wake of the US Supreme Court decision that made affirmative action in higher education unlawful, are leaning on a statute originating in the mid-1860s, intended to ensure Black Americans were granted equal rights.
This law – Section 1981 of the 1866 Civil Rights Act – is being used to query the legality of corporate diversity, equity, and inclusion policies. Interestingly, these cases are not being presented under the more commonly used Title VII of the 1964 Civil Rights Act. The lawsuits include one against Morgan Stanley & Co. LLC over the termination of a white male employee who claimed that he was a victim of “reverse discrimination”.
As these cases move forward, they will likely test the interpretation and application of the Section 1981 of the 1866 Civil Rights Act. Such tests stand to potentially shape the approach to, and understanding of, diversity and inclusion policies within the corporate sphere. As a result, corporations and their legal teams will be watching these developments closely.
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