Last year, the US Supreme Court ruled in SFFA v. Harvard that discriminating on the basis of race in college admissions violates the equal protection clause of the 14th Amendment.(1) As a result, the legality of corporate Diversity, Equity and Inclusion (DEI) programs was called into question(2) and 13 Attorneys General warned that SFFA implicated corporate DEI programs.(3)

This year, those implications widened when the Supreme Court ruled in Muldrow v. City of St. Louis that Title VII of the Civil Rights Act protected against discriminatory job transfers.(4) The ruling also lowered the bar for employees to successfully sue their employers for discrimination,(5) and is therefore likely to lead to an increase in discrimination claims.

Since SFFA, a number of DEI-related lawsuits have been filed. Starbucks was successfully sued for discrimination by an employee for $25.6 million,(6) and the risk of being sued for such discrimination is rising.(7)

Sensibly, many major companies have responded by rolling back their DEI commitments and laying off DEI departments.(8) Alphabet and Meta cut DEI staff and DEI-related investments;(9) and Microsoft and Zoom laid off their entire DEI teams.(10) Since Muldrow, John Deere publicly halted DEI-related policies(11) after Tractor Supply explicitly stated that it “eliminate[d] DEI roles and retire[d] our current DEI goals;”(12) Lowe’s and Ford ended their participation in the Human Rights Campaign’s Corporate Equality (CEI);(13) Harley Davidson ceased its DEI efforts;(14) and Jack Daniels ended both its DEI efforts and CEI participation.(15)It’s clear that DEI poses litigation, reputational and financial risks to companies, and therefore financial risks to their shareholders, and therefore further risks to companies for not abiding by their fiduciary duties.

Despite these obvious risks, the SFFA and Muldrow decisions and the wave of corporate DEI retreats, Apple still has an “Inclusion & Diversity” program.(16) (Merely omitting “equity” from the title is meaningless as the program still expresses multiple explicit commitments to “equity,”(17) and it’s stated policies are consistent with, if not more radical than, most corporate DEI programs.) Apple’s program includes: a “Supplier Diversity Program” that picks suppliers based on their race and sex;(18) considering and valuing race and sex in hiring and promotion decisions;(19) employing a “VP of Inclusion & Diversity;”(20) employee member groups for some groups (those arbitrarily deemed “diverse”), but not for others;(21) and contributing shareholder money to organizations that advance DEI.(22)

With 80,000 employees,(23) Apple likely has over 50,000 who are potentially victims of this type of discrimination.(24) If even only a fraction of employees file suit, and only some of those prove successful, the cost to Apple could reach tens of billions of dollars.