DEI: Son of Deference
47 Berkeley J. of Emp. & Lab. L. (2025 forthcoming)
39 Pages Posted: 17 Dec 2024 Last revised: 8 Jan 2025
Date Written: November 13, 2024
Abstract
Employers gained power over civil rights matters in a particular historical context. In the 1970s, courts solved legal debates about affirmative action and racial segregation on the job by deflecting the legal authority to decide, in other words, through deference. By doing so, courts appointed non-judicial actors as civil rights governors, meaning universities, employers and the federal government. These actors’ governance powers were not absolute, yet they remained the default non-judicial authority structure on sex and race composition and relations.
Diversity, equity, and inclusion (DEI) programs were born out of judicial deference to employers. Such deference on civil rights and equal opportunity issues cemented employers’ decades-long role as civil rights governors on the job. But as courts unravel laws protecting civil rights in the workplace, DEI initiatives and workplace civil rights governance might become unsettled. This unique historical moment demands reflection on the role of deference, civil rights, and power on the job.
Deference is a policy choice with legal and political outcomes. After employers won Title VII deference in Steelworkers v. Weber, internal and external coalitions realigned to pressure this novel civil rights bottleneck. New framings, opportunities, and lexicons opened up for those advocating and opposing civil rights on the job. These changes are now institutionalized as DEI initiatives, offices, and programs.
This Article illuminates the link between deference and DEI, spotlighting the privatized and bifurcated nature of the politics of civil rights in the past forty years. In addition, the Article broadens the scope of contemporary debates about judicial deference as a strategy and a politics beyond the realms of administrative and constitutional law. The Article concludes by offering criteria for designing alternative civil rights governance structures outside of courts and employers.
Keywords: DEI, Judicial Deference, Civil Rights Governance, Affirmative Action, Workplace Civil Rights, Title VII, Title VI, United Steelworkers v. Weber, Equal Opportunity Law, Employer Prerogatives, Employment Discrimination, Governance of Civil Rights
JEL Classification: J71, J53, K31, D73
Suggested Citation: Suggested Citation