For years, the American Left, unable to win arguments at the ballot box, has resorted to courts to try to impose its agenda. In February, I discussed a report from the Alliance for Consumers documenting this “woke lawfare.” Now AFC is back with a second report, entitled Lawfare in America: Diversity, Equity, and Inclusion. It documents how a tightly networked coalition of trial lawyers and activist organizations has spent two decades using discrimination suits not to secure compensation for individual plaintiffs, but to impose sweeping DEI mandates on some of America’s largest employers and institutions. In several cases, this has already happened via settlement. Other cases are still working their way through the courts—all without a single vote in Congress, a state legislature, or even shareholder approval.
AFC examined thirteen such cases, which usually follow a familiar pattern: A class-action or systemic-bias action is filed against an employer alleging bias in pay, promotion, termination, or other employment practices. Rather than litigate to judgment, most defendants settle—and the settlement isn’t just a check. It’s a governance decree. Gonzalez v. Abercrombie & Fitch Stores, an employment discrimination case filed in 2003, produced a $50 million settlement that created a vice president for diversity and mandated the hiring of 25 diversity recruiters, complete with “benchmarks” for hiring people of specifically designated races and women—to be reported regularly to a court-appointed special master.
Other settlements have designated an independent labor economist to audit pay equity, as in Chen-Oster v. Goldman Sachs, a gender discrimination class action that included the defendant’s $215 million commitment to advance DEI and submission of its performance-review process to external audit. In Ellis v. Google LLC, Google paid $118 million and accepted third-party review of its employment practices, which a settlement monitor would supervise for three years. In another gender discrimination class action, Rasmussen v. The Walt Disney Company, Walt Disney retained not only a labor economist in its $43.25 million settlement, but also an industrial consultant and an “industrial/organizational psychologist.”
Such cases are not limited to the employment context, or to private companies. In the pending case Oliver v. Navy Federal Credit Union, plaintiffs are pursuing court-supervised changes to the credit union’s mortgage-underwriting practices on behalf of its 13 million members. If successful, it would extend this litigation-driven mandate model into consumer lending. In American Association of University Professors—Harvard Faculty Chapter v. United States Department of Justice, the plaintiff faculty organization seeks to block the Trump administration’s effort to claw back $8.7 billion in federal funding over Harvard’s refusal to end its DEI programs. A district court has already invalidated the termination of $2.2 billion in grants to Harvard.
Beyond chronicling these cases, AFC’s report is valuable for what it reveals about the forces driving the litigation. As observers might guess from AFC’s regularly updated exposés of the shady trial lawyer pipeline, the plaintiffs’ firms behind these suits are not neutral players seeking compensation for wronged clients. Lieff Cabraser Heimann & Bernstein has directed 99% of its federal political donations since 2017—over $5.5 million—to Democrats and their allied committees while running a “Civil Rights and Social Justice Practice Group” that doubles as an arm of the DEI movement. The firm appeared as counsel in Gonzalez, Chen-Oster, and Ellis. Cohen Milstein Sellers & Toll, plaintiffs’ counsel in Rasmussen and American Association of University Professors, gave 99% of its 2024 donations to Democrats, with the DNC and then–Vice President Harris its top two recipients, and openly advises clients that DEI is consistent with their fiduciary duties. Periodically filing amicus briefs in a number of these cases are entrenched left-wing groups like the NAACP Legal Defense Fund, the National Women’s Law Center (funded by Arabella Advisors’ Hopewell Fund and by George Soros’ Open Society Foundations), and Public Justice.
This system is basically a backdoor legislature—one that perpetuates itself without ever having to win an election. AFC executive director O.H. Skinner has explained how “vast sums of money” were pumped “into the DEI machine” by these settlements. “And every settlement put money into the hands of trial lawyers, who used this to roll out more lawsuits,” he adds.
Consent decrees are not statutes, and settlement monitors are not accountable to voters. Restoring courts to their proper role in our constitutional republic requires recognizing woke DEI lawfare for what it is. As Skinner has well explained: “[A]ctivists and trial lawyers are looking to turn courts into the front lines of their woke policy agenda, but there is tremendous opportunity right now, as this all comes to light, for conservative states to act now, with their legislatures and governors moving to protect their citizens from this kind of lawfare before it is too late.”