I keep getting asked how employers can legally maintain DEI programs in today's political climate. A federal judge just answered that question in a lawsuit the Missouri Attorney General brought against Starbucks—and in dismissing it, handed corporate ...
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Federal court provides road map for lawful DEI programs

I keep getting asked how employers can legally maintain DEI programs in today's political climate. A federal judge just answered that question in a lawsuit the Missouri Attorney General brought against Starbucks—and in dismissing it, handed corporate America a roadmap.

The AG argued Starbucks' DEI policies were illegal because they "favored" BIPOC, women, and LGBTQ+ employees through mentorship, affinity groups, partnerships, and "quotas" tied to executive pay.

The court held that allegations without facts are just theories—and theories don't establish jurisdiction or liability.

The AG argued Missouri could sue to protect its citizens from discrimination.

The court held Missouri failed to identify even one injured Missourian. Without a concrete, particularized injury, there's no standing to sue—and without harm to a quasi-state interest, the state can't litigate private claims. The court also held that there was no reason individuals couldn't sue if discrimination actually occurred.

The AG argued maintaining "quotas" plus incentive compensation tied to meeting them necessarily meant discriminatory hiring and firing.

The court held discrimination still requires an adverse employment action taken because of race or sex. Starbucks' goals didn't show that. The company already exceeded many targets, retention incentives aren't zero-sum—keeping a diverse employee doesn’t mean a white or male employee was harmed—and demographic shifts ("more female and less white") don’t establish causation without facts tying them to discriminatory decisions.

The AG argued Partner Networks, mentorship programs, DEI partnerships, and executive incentives segregated employees or coerced discrimination.

The court held the networks were open to all, no one was alleged to be excluded from mentorship, and participation in groups like the Board Diversity Action Alliance showed no actual harm, and a company can't coerce itself.

The AG argued Starbucks "published" illegal job preferences in reports and proxy statements.

The court held those documents weren't job ads, didn't announce "preferred races get jobs," and didn't deter anyone from applying.

Want a durable DEI program? This opinion sketches the roadmap: aspirational goals, open-access affinity groups, mentorship without exclusion, and—most importantly—no employment decisions you can't tie to legitimate, non-discriminatory criteria. The AG brought politics. The court required facts.

WIRTW #788: the 'it's a beautiful day' edition

When I was a kid, Mr. Rogers' Neighborhood wasn't background noise. You sat on the floor. You watched. You waited for him to come through the door, change his shoes, and pull on that cardigan. Nothing flashy happened. No one was mocked. No one was humiliated. No one "won."

And yet, by the end, you felt steadier.

It took me years to understand why. Fred Rogers wasn't just entertaining children. He was teaching empathy—carefully, intentionally, and without irony. Which is why I keep coming back to this thought: we need a sociological study comparing the empathy of adults who grew up on Mr. Rogers' Neighborhood with those who didn't.

Because empathy feels like the missing muscle in American society right now.

Every episode opened with a simple, disarming truth:

"I like you just the way you are."

Not if you earn it.
Not if you agree.
Not if you fit in.

Just: you matter.

That idea once felt obvious. Today, it feels almost subversive. We sort people by usefulness, loyalty, productivity, and tribe. Empathy gets rationed. Compassion gets qualified. Caring about the “wrong” people is treated as a flaw.

Rogers never hedged.

"You are worth caring about."

That's where empathy begins. And when a society stops teaching that lesson, it doesn't become tougher or more realistic. It becomes colder—and easier to harden.

Rogers also understood that empathy requires emotional literacy. You can't recognize pain in others if you've been taught to deny it in yourself. On his show, he talked openly about fear, anger, sadness, and loss—not to inflame them, but to name them.

"When we're frightened, we tend to lash out at others."

That isn't politics. It's human behavior. When empathy erodes, fear rushes in. And fear doesn't make people wiser or stronger. It makes them reactive.

Rogers' answer wasn't suppression or denial. It was honesty.

"The thing that is mentionable becomes manageable."

That lesson applies to adults as much as children. Societies that can't talk honestly about discomfort don't become resilient. They become brittle.

Empathy also shapes how we see one another.

"The neighbors you find are the neighbors you look for."

If you go looking for threats, you'll find them. If you go looking for people, you'll find those too. One path leads to suspicion and withdrawal. The other leads to restraint and connection.

And empathy doesn't require unanimity.

"We don't have to think alike to love alike."

That sentence feels almost antique now, which should worry us. We increasingly treat disagreement as disqualification and difference as danger. Rogers offered a quieter alternative: coexistence without dehumanization.

He never framed empathy as weakness. He treated it as a civic skill—something to be taught, practiced, and protected. A society held together by empathy doesn't need as much fear or force to function.

Which brings us to where we are.

The erosion of empathy doesn't just harden people; it makes them easier to lead by fear. When compassion is framed as weakness, it leaves a vacuum. And something always rushes in to fill it.

So yes, fear still matters. But it's a consequence, not a cause. Fear is downstream of the deliberate erosion of empathy. When people are taught not to care, cruelty becomes easy. And when empathy disappears, bad ideas don't have to work very hard.

Fred Rogers never talked about politics. He didn't need to. He was doing something more basic: teaching children how to live with other people without losing their humanity.

America didn't lose its way because we cared too much.

We lost it because we stopped treating empathy as a strength.

Empathy isn't softness. It's social infrastructure. It's our superpower. And any culture that mocks it shouldn't be surprised when things start coming apart.


Here's what I read this week that you should read, too.

A Finger in the Constitutional Dike — via San Antonio Employment Law Blog



Are you using ChatGPT as your substitute lawyer? — via Improve Your HR by Suzanne Lucas, the Evil HR Lady


When a PIP becomes the retaliation claim — via Eric Meyer's Employer Handbook Blog


Left With Nothing But an Injunction: Fifth Circuit Vacates $75 Million Trade Secret Verdict After Plaintiff Fails to Apportion Damages — via Trading Secrets

Uncle Nearest Is Insolvent, Receiver's Explosive Affidavit Claims — via VinePair

Just Subpoena It.

This week, the EEOC sent a strong message to corporate America when it went to federal court to force Nike to turn over years of documents tied to allegations that its DEI programs discriminated against White employees.

The EEOC isn't suing Nike for discrimination—at least not yet. Instead, it has filed a subpoena enforcement action after Nike allegedly refused to fully comply with an investigation that reaches back to 2018. According to the agency, Nike's "DEI-related 2025 Targets" and other initiatives may have resulted in race-based decision-making in hiring, promotions, layoffs, internships, and mentoring and leadership-development programs.

Under EEOC Chair Andrea Lucas, the agency has made one thing unmistakably clear: Title VII is "colorblind." In fact, that's been the state of the law since in enactment in 1964. That means DEI programs are not immune from scrutiny—especially if they involve quotas, race-restricted programs, or employment decisions made even partly because of race.

The agency is asking Nike for information on layoff criteria, race and ethnicity tracking, whether executive compensation was influenced by workforce diversity metrics, and 16 allegedly race-restricted career development programs.

Nike says the subpoena is wildly overbroad, unduly burdensome, and a fishing expedition—and that it has already produced thousands of pages of documents. That procedural fight will play out in court. But zoom out, and the bigger picture is hard to miss.

Nike isn't just being investigated. It’s being showcased. That's the point in targeting Nike—to make an example of a big-name employer to highlight this issue.

Employers with DEI programs or goals: good intentions won't save you. DEI goals, standing alone, are not illegal. Their legality, however, depends on how you implement them. Numerical race-based targets, limiting opportunities by race, or factoring race into promotions, layoffs, or compensation decisions have always lived on thin legal ice. That ice just cracked.

If your DEI strategy includes hard targets tied to race, race-exclusive mentoring or leadership programs, or uses race as a factor in employment decisions, you should assume the EEOC is very, very interested. Employers should audit their DEI programs now—before the agency decides to do it for them.

Union activity Is not a license to be abusive at work

Let's get something straight right out of the gate: employees have the right to organize. They also have the right to complain about work, staffing, and management decisions. What they do not have is a free pass to be abusive, vulgar, and demeaning toward coworkers and supervisors—union campaign or not.

That's what makes the Starbucks case now pending before the Fifth Circuit so frustrating.

The employee at the center of this case wasn't just "venting." In a private Snapchat group, he referred to his store manager as a "f--king p--sy" and "chicken s⁠--t," called a coworker a "useless f⁠--king" employee and a "dumb f--king b⁠--ch," and told management to "suck my f--king d--k." That’s not heated debate. That’s not protected concerted activity. That's workplace misconduct, plain and simple.

Yet the NLRB took the position that disciplining—and ultimately firing—this employee violated the NLRA because Starbucks supposedly tolerated profanity generally and because the employee happened to be a prominent union supporter.

That's a dangerous line to draw.

Yes, context matters under labor law. Yes, employers can't selectively enforce rules to punish union activity. But there has to be a line. Employers have legal obligations to maintain respectful workplaces, prevent harassment, and protect employees from abusive conduct. When the Board treats language like this as effectively protected because it occurred during a union campaign, it puts employers in an impossible bind.

Here's the real-world problem: if an employer disciplines this behavior, it risks an unfair labor practice charge. If it doesn't, it risks a hostile work environment claim from the employee called gender-based slurs.

Union organizing does not suspend basic workplace standards. The NLRA was never meant to require employers to tolerate personal attacks, misogynistic slurs, or degrading language toward coworkers. Protecting concerted activity should not mean normalizing abuse.

Yes, employees can organize, complain, and advocate forcefully. But they can't be abusive jerks while doing it. And employers should not be punished for drawing that line.

When does $5,000,000 not equal $5,000,000?

Elizabeth Graham worked as a benefits generalist in the human resources department of Bristol Hospice Holdings. She filed (and later withdrew) an EEOC charge alleging age and sex harassment. A couple of months later, during an acquisition integration, the company accused her of blowing off a training assignment (and then lying about it). The VP of HR terminated her — allegedly for insubordination and falsifying what happened.

A federal court jury just awarded her $5,000,000 in punitive damages, on top of $75,000 in non-economic compensatory damages. That punitive award will never last.

Punitive damages are not whatever number a jury thinks will send a message. They are constrained by constitutional due-process limits, and the Supreme Court has repeatedly emphasized that punitive damages must bear a reasonable relationship to compensatory damages. While there's no bright-line rule, single-digit ratios are generally considered acceptable. As the ratio grows, judicial tolerance drops fast.

Here, the ratio is roughly 67 to 1.
That alone puts the verdict in serious jeopardy.

Courts reviewing punitive awards look to three guideposts: (1) how reprehensible the defendant's conduct was, (2) the ratio between punitive and compensatory damages, and (3) how the award compares to civil penalties in similar cases.

Even accepting the jury's view of the facts, this is a single-plaintiff retaliation case involving economic and emotional harm — not physical injury, not widespread misconduct, and not conduct at the extreme end of the employer-misbehavior spectrum.

That matters. A lot.

When compensatory damages are relatively low, courts are especially skeptical of massive punitive awards untethered from actual harm. Punitive damages are meant to punish and deter, not to create an arbitrary windfall. At some point, punishment becomes constitutionally excessive.

This verdict crossed that line.

Expect post-trial motions. Expect remittitur. And if necessary, expect appellate intervention. The liability finding may stand. The $5 million number almost certainly will not.

$5,000,000 may grab headlines today. But in the end, it almost certainly won't equal $5,000,000.

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