I grew up in an era when the goal of the civil rights movement was to create a system of equal treatment before the law. That promise of equality offers every American the same opportunity to succeed without regard to the color of their skin or their background. But over the last several decades, the language of the civil rights movement has been hollowed out by the progressive Left, who have traded equality for “equity,” a standard that demands equivalent outcomes rather than equal rules.
This belief of equity over equality was born out of the teachings of the Marxist academics who mainstreamed Critical Race Theory and the concept that America is systemically racist. Unfortunately, these theories eventually made their way into the boardrooms of corporate America in the last decade, resulting in widespread Diversity, Equity, and Inclusion (DEI) mandates and the overall abandonment of meritocracy.
Today, the equity-based corporate policies are still deeply embedded in many of America’s top corporations thanks to activists and trial lawyers who have lost at the ballot box, but have still found a different way to ensure these sweeping DEI policies are carried out.
A new report from the nonprofit group Alliance for Consumers documents how a well-funded segment of the plaintiffs' bar has partnered with left-wing activists to force DEI mandates through litigation. The group traces a pattern of “woke lawfare” in which lawsuits alleging discrimination are settled on terms that install race- and sex-conscious personnel regimes inside major American employers, create outside monitoring to ensure the company meets diversity quotas, and ensure DEI departments are empowered throughout the company.
Look at what a settlement now purchases. When Google resolved Ellis v. Google in 2022, the $118 million payout was the smallest part of the deal. The company also agreed to retain a third-party expert to analyze its hiring, bring in an independent labor economist to review pay equity, and submit to an outside settlement monitor for three years.
In 2023, Goldman Sachs paid $215 million in Chen-Oster v. Goldman Sachs after a decade of litigation and accepted outside review of its pay and promotion decisions. Kaiser Permanente paid $18.9 million and agreed to an outside consultant charged with remediating disparities. Abercrombie & Fitch's 2005 settlement required the company to create a vice president of diversity, hire 25 diversity recruiters, and change who appeared in its advertising.
This campaign follows the same playbook as the climate change litigation that has proliferated in state courts around the nation and is being pushed by many of the same social-justice-oriented plaintiffs firms. For example, the law firm Lieff, Cabraser, Heimann & Berstein, which was lead counsel in the discrimination suits against Google, Goldman Sachs, and Abercrombie, also represents the state of California in its climate lawfare case against the energy industry.
In the climate cases, the plaintiffs are abusing our courts to force through energy policies that voters and lawmakers have rejected. In the discrimination cases, trial lawyers have weaponized the law to install permanent DEI bureaucracies and race-based hiring practices in major American corporations.
Worse still, as these cases succeed, the fees from one settlement are used to capitalize the next round of filings. Consultants and monitors created by one consent decree may become the expert witnesses in the following case.
Arguments about racial preferences in hiring are not new, and the Supreme Court has largely settled these debates. SCOTUS ended race-conscious admissions, and meritocracy should be the method used by all. The Trump Administration has been clear on this and demanded companies and organizations retreat from these woke schemes, but unfortunately, these activists won’t stop pushing their ideology. Litigation is now the workaround of lawmakers. Weaponizing the courts is a way to secure, through a judge's signature on a settlement, what could not be secured through a legislature, a rulemaking, or a shareholder vote.
Governors, state legislators, and attorneys general have tools here, and they should use them before the next wave of lawsuits arrives. States can restrict the use of public nuisance and similar catch-all theories against lawful, regulated businesses. They can remove the tools and funding mechanisms trial lawyers use to fuel these lawsuits. They can insist that settlements approved in state court compensate the people actually harmed, rather than erecting DEI governance structures that outlive the dispute. Congress and state legislatures wrote the civil rights laws. They should be the ones deciding what those laws now require.
Ken Blackwell is the President of The Council for National Policy and Chairman of the Conservative Action Project.