Over the past few years, diversity, equity, and inclusion practices have become hot-button political issues and the subject of heated debate. Since President Trump’s inauguration in January 2025, the federal government, and many state governments, have often decried “illegal DEI” and sought to refocus civil rights enforcement on protecting groups they contend were previously overlooked: often white, male, and Christian workers.
Until recently, the risks to employers from this shifting emphasis have been primarily (though not exclusively) reputational. Two recent decisions, however, suggest that courts and agencies may be increasingly receptive to claims by employees that sound in this register, particularly when the claims arise out of employees’ vocal opposition to employers’ DEI practices (often themselves intended to prevent unlawful discrimination) or support of DEI-coded causes.
On June 24, 2026, the Ninth Circuit issued its decision in Brown v. Alaska Airlines, Inc. (No. 24-3789), reviving for trial the Title VII and state-law religious discrimination claims of two flight attendants fired over intranet comments objecting—one in expressly religious terms—to the company’s public support for the federal Equality Act.
Exactly one month later, on July 24, an administrative law judge of the National Labor Relations Board (“NLRB”) issued a decision in Apex Fintech Services, LLC (No. 12-CA-325317), holding that an employer violated federal labor law when it terminated an employee over public LinkedIn posts attacking the company’s DEI programs as discriminatory against men.
Employers previously rested (fairly) easily taking action against employees who loudly and publicly criticized them for supporting socially progressive legislation or implementing (most) DEI-related programs. And in fact, many employers reasonably believed that doing so was a necessary, or at least useful, prophylactic against hostile work environment claims.
These decisions suggest that may no longer be the case.
