This post is part of a series on weaponizing antidiscrimination law.
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The Trump Administration’s assault on DEI is the latest episode in a longstanding pattern in antidiscrimination law. Steps taken against discrimination are inevitably decried as themselves discriminatory by those who assert that we already operate under a baseline of merit, not domination. The charge of “special rights” echoes through history, from early prohibitions on basic disparate treatment, to remedies imposed once discrimination is found, to proactive efforts to promote fairness like affirmative action or DEI.
In this post, we argue that the very existence of a contested baseline—that is, disagreement about the nature and extent of discrimination in the prevailing system—provides a vector of counter-attack, especially for individuals purged, blacklisted, or passed over for their past DEI work, a group that includes a high concentration of Black women. This tactic leverages Title VII’s prohibition of retaliation against employees who have opposed discrimination. The threat of a retaliation lawsuit can push back against Trump’s extortionate demands to end DEI in a vast array of institutions. And, of course, such lawsuits could provide some measure of relief to workers already harmed.
Title VII’s antiretaliation provisions hold that employers may not harm their workers because of employees’ engagement in protected forms of “opposition” to practices that themselves violate the statute. In situations where employers have avowedly (or demonstrably) fired, demoted, or refused to hire employees based on their participation in DEI programs, questions of harm and causation are straightforward. The decisive question is whether participation in DEI work counts as protected opposition activity. We argue that it does.
Doing DEI work constitutes opposition to discrimination. It may not be the most important or effective form; it could even be counterproductive or misguided. These are largely empirical questions. But as a legal matter, courts have long held that protection against retaliation does not require a showing that the practices being opposed were in fact illegally discriminatory. For example, workers can perceive discrimination, object to their employers, and then face retaliation for complaining. In subsequent litigation, they frequently lose the underlying discrimination claim but win the retaliation one. As HR officials often say, it’s always the retaliation. What matters is whether the worker operated within a “zone of reasonableness,” in other words whether they reasonably and in good faith—even if mistakenly—believed that they were opposing discrimination.
A core purpose of DEI programs is to prevent discrimination. First, consider the dreaded DEI “trainings.” Even if they are amateurish or conclusory, they often introduce rules of thumb—e.g., what counts as sexual harassment or what questions may be asked in interviews—designed to promote compliance with antidiscrimination laws. In addition, the more substantive engagements provide an empirical basis for structural interventions to decrease unintended discrimination. For example, many trainings explore implicit bias, which are attitudes and stereotypes about social groups that we have but are unaware of because we cannot ascertain them simply through direct introspection. Decades of empirical work have demonstrated that implicit biases exist, can be objectively measured, are pervasive, and predict subtle but consequential changes in judgment and decisionmaking. Still other trainings introduce the concept of stereotype threat, which has been shown to undermine performance when negative stereotypes of a group are made salient in the work environment.
Both literatures have identified interventions to help mitigate against predictable discrimination by, for example, not relying on word-of-mouth hiring, locking down definitions of merit prior to interviewing, selectively blinding reviewers of identity information, adding structure to interviews and hiring processes, promoting workplace belonging (sometimes by altering the physical and cultural environment) to decrease stereotype threat, and designing improved feedback systems that emphasize a growth mindset to do the same. These are all evidence-based interventions central to modern DEI programs that are designed to prevent discrimination. Whether such policies, procedures, and practices sometimes, always, or never succeed is beside the point. To repeat, what’s critical is that workers have explored, designed, implemented, managed, and participated in these programs with a good faith, evidence-based, and thus eminently reasonable belief that their participation helped resist and prevent discrimination.
Having established that DEI programs are—or at least have been reasonably understood to be—antidiscrimination programs, we can now flesh out how an individual’s participation constitutes “opposition” to discrimination. Crucially, Title VII’s concept of “opposition” embraces conduct that is preventive in nature. There is no requirement to wait until after the discrimination has taken place to complain about it. The Supreme Court has held that “refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons” is protected opposition, and courts have held that simply making a nondiscriminatory decision—even without a prior directive to the contrary—may be protected against subsequent retaliation. Thus, the fact that DEI is often designed to be prospective and preventive, rather than retrospective and remedial, is consistent with its status as “opposition.”
The analysis so far establishes that retaliation against a worker for advocating DEI practices would violate Title VII. That kind of workplace speech underlies the most familiar cases of retaliation, but what about retaliation that attaches to actually doing such work as part of one’s job? Employers have sometimes argued that activities that constitute simply doing one’s job fall beyond the scope of protected conduct. Under that approach, there would be no protection for an employee’s activities in the course of working in their employer’s DEI office or other kinds of on-the-job DEI work like attending trainings: the very things putting people on blacklists. This would, quite perversely, render workers vulnerable precisely when they may have the greatest impact on discrimination.
Although this issue has received relatively limited discussion, we note that excluding all conduct in the course of employment from the definition of “opposition” is inconsistent with the precedent on preventive action, like refusing to participate in a discriminatory scheme. Indeed, the available caselaw generally affirms that opposition conduct does not lose protection merely because it occurs in the course of the worker’s duties, though some courts require this conduct to be especially “active” rather than rote. For instance, the Sixth Circuit recently upheld protection for an Equal Employment Opportunity Officer who faced retaliation for efforts to enforce DEI-style internal procedures designed “to ensure there was no discrimination in hiring within [the company] and among its vendors.”
Our “opposition” analysis applies most seamlessly to workers who participate in DEI work at least partly because of its antidiscriminatory mission. Thus, it pertains squarely to someone pursuing a career in DEI work, or integrating it into their work life, out of commitment to its goals. The extension is less clear for someone reluctantly participating merely to comply with an employer requirement. Even there, however, there is some helpful labor law precedent protecting workers from retaliation for refusing to cross a picket line, even when they were motivated by peer pressure more than solidarity. And under Title VII, one appellate court has found opposition protected even when undertaken pursuant to a “contractual duty.”
Our analysis applies most squarely to individualized decisions about workers based on their past DEI work. It could have less force when an entire DEI office is closed, which leads to layoffs. Even here, though, it would be retaliation to deny the individuals who lost these DEI jobs the same opportunities for transfers or other mitigation attached to other layoffs. This is an underdeveloped area, and the proper analysis could turn on a more nuanced account of employer motives in closing the office.
So to be clear, we are not arguing that employers are legally obligated to preserve all jobs doing DEI work. Instead, the point is that it’s illegal to purge or blacklist former DEI workers, such that their previous DEI experience prevents their employment in other work—exactly what the Trump Administration has been pursuing. Such retaliation claims can succeed without needing to establish the more difficult point that eliminating DEI programs or blacklisting DEI workers is itself a form of race (or other) discrimination (though this substantive case is often strong). Indeed, given the broad zone of reasonableness for good faith opposition to discrimination, these retaliation protections could survive even the most extreme dismantling of DEI, in which right-wing courts might someday rule that conventional DEI practices themselves violate Title VII. Further DEI work after that point would be harder to construe as protected opposition.
In sum, then, employees doing DEI work to help prevent discrimination are engaged in protected opposition conduct under Title VII. Therefore, inflicting “adverse employment actions” upon them because of such work constitutes illegal retaliation under Title VII. To repeat, this conclusion does not rely on the factfinder agreeing that DEI is efficacious antidiscrimination work, nor on any legal conclusion that the employer is obligated to continue it. Instead, all that’s required is that DEI is reasonably, even if controversially, understood by those engaging in it as an effort to prevent discrimination—which was undoubtedly its explicit and widespread understanding before the recent backlash.
In recent decades, Title VII’s retaliation protections have been construed broadly, even while courts have narrowed the statute’s substantive protections. Nonetheless, one might object that our doctrinal arguments, even if well-grounded in existing law, are pointless because the federal courts, or at least today’s Supreme Court, will find some way to lick Trump’s boots, on this matter as in others. But remember that most states and many localities also have their own employment discrimination statutes with similar, or even more robust, antiretaliation protections.
The Administration’s extraordinary abuses of power against our core institutions have triggered widespread cowardice dressed up as pragmatic survival. Aversion to basic self-defense, let alone collective defense, should not shock us. But if fear is the primal driver, we must activate countervailing fears wherever we can, to raise the expected costs of anticipatory capitulation. Retaliation suits can create such counterweights. There are substantial limitations, as we have acknowledged, but this is a time for aggressive experimentation, not resignation.
