Morgan Lewis counsels many of the largest private and public companies, foundations, and nonprofits across the United States regarding how to advance racial equity and diversity, equity, and inclusion (DEI) in their organization without running afoul of the law. In recent years—and particularly since the US Supreme Court held that race-based admissions programs are unconstitutional—litigants are increasingly using Section 1981 of the Civil Rights Act of 1866 to challenge programs and strategies designed to promote racial equity and DEI.
Enacted to ensure equal opportunity for racial minorities, Section 1981 prohibits granting contracts or more favorable contractual terms based on race. Because Section 1981 applies to contractual relationships, litigants argue that it covers various types of racial equity and DEI programs, from supplier diversity programs, private investments and lending programs, and fellowship programs to philanthropic activities and grantmaking.
Our team is actively defending multiple Section 1981 lawsuits that challenge the racial equity programs our clients created to level the playing field for underrepresented racial groups.