The cases aren’t close. The verdicts aren’t small. And the legal standard being applied is 60 years old.Over three decades advising institutions and testifying as an expert witness in fiduciary duty cases, I’ve watched organizations confuse political enthusiasm for legal compliance. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, sex, religion, national origin, and color. The prohibition is categorical and symmetric: It covers discrimination against any worker on any protected characteristic, regardless of which group the employer intended to benefit. There is no exception for diversity programs. The statute says what it says.
‘WHO CARES’ ABOUT SYSTEMIC RACISM WHEN IT BENEFITS MINORITIES?
Meritocracy — awarding positions and advancement based on ability and performance rather than demographic identity — is the operative standard the statute establishes. It always has been. What changed in the last decade is that large employers spent years assuming otherwise.
The verdicts
In March 2024, the Fourth Circuit upheld a $3.4 million verdict in Duvall v. Novant Health. David Duvall, a white male senior vice president, was terminated during a company-wide DEI initiative designed to achieve “a different racial and gender makeup.” The court found no contemporaneous performance documentation supporting the dismissal — Duvall had received strong reviews throughout his tenure. Attorney fee awards brought the total recovery to approximately $4.4 million.
