White Walmart manager alleges DEI policy led to his termination

Dive Brief:

• A former market manager at a Pennsylvania-area Walmart filed a lawsuit against the company Oct. 2, alleging he was punished and eventually terminated for complaining about the conduct of two African American senior leaders through a tip line (Robinson v. Wal-Mart Associates, Inc.).
• According to the worker, the actions were indicative of racial discrimination stemming from Walmart’s DEI program, adopted around 2020, which “implicitly promoted racism and explicitly encouraged the hire, retention, and promotions of individuals based on illegal qualifications of race.”
• The worker charged Walmart with violating the Civil Rights Act of 1866, a law more than 150 years old that, like the Civil Rights Act of 1964, prohibits racial discrimination in employment.

Dive Insight:

The Civil Rights Act of 1866 has emerged in recent years as a tool to oppose DEI programs on the premise of “reverse discrimination,” according to a November 2023 report from The Washington Post. The law has been cited in such lawsuits against Morgan Stanley, Amazon and Pfizer, among others, according to the Post. 

Section 1981 of the Civil Rights Act of 1866 functions much like Title VII of the Civil Rights Act of 1964, according to an analysis by Virginia-based law practice Coffield Law, in that, for example, both apply the same tests for proving a racially hostile work environment. But they differ in several important ways.

A National Law Review report highlighted a number of reasons a worker might choose to bring a Section 1981 complaint rather than one relying on Title VII. For one, Section 1981 does not put a cap on damages, increasing the payoff plaintiffs could obtain from a jury and potentially incentivizing a company to settle.

Section 1981 cases are also not subject to the U.S. Equal Employment Opportunity Commission, so plaintiffs need not file a charge with the agency before bringing their case to court — particularly important if they missed the deadline to do so. Relatedly, Section 1981 complaints have a longer statute of limitations than Title VII charges, giving plaintiffs four years to file a lawsuit, compared to the 90-window window that begins for plaintiffs after receiving a right-to-sue letter from EEOC under Title VII.

In the case of Robinson, the plaintiff alleged the events occurred in late 2023 and 2024, resulting in his termination in early September 2024. 

Walmart stepped back from its DEI commitments last November, saying they were “on a journey” and were still committed to “foster[ing] a sense of belonging.” The company did not respond to a request for comment on the Robinson lawsuit.