Law Office of Stephen R. Polauf | Labor & Employment Attorney | New Haven, Connecticut

My Employment Law Blog

Disclaimer: Content is informational only, not legal advice. For specific guidance, consult an attorney in your jurisdiction.

Welcome to my employment law blog, my writing here reflects my thoughts on employment law from my experience representing employers—offering practical advice, topical policy commentary, and original legal analysis. My piece on Connecticut’s Paid Sick Leave law was published in the Hartford Business Journal in March 2025, and I also cross-post my content here to LinkedIn.

  • The Double Standard on Anti-Discrimination: Government Policy and Private Employment

    With all the attention focused on the current administration’s aggressive and routinely trumpeted “anti-DEI” policies, compared to what some call “pro-DEI” policies of the previous administration, there’s been considerable focus on how the Civil Rights Act applies to private employers.

    When “DEI” was promoted by the government, it became the standard at every private institution. The prior administration held out “DEI” as an anti-discrimination principle, as if not adopting it could constitute unlawful discrimination.

    When a new administration took over, “DEI” lost its seat in the ensuing game of public policy musical chairs. The large employment law firms and human resources associations—vultures with no independent moral compass seeking to profiteer off of the shifting political winds—descended immediately, once again. The employment law professionals were quick to cash in on the panic, issuing “guidance” about how to “comply” with enforcement policies that had not yet materialized, to revise and delete language and materials those same lawyers and consultants likely charged to draft just a few years earlier.

    Private industry, fearful of either losing government favor or provoking its anger, reacted at breakneck speed by scrubbing “DEI” language from handbooks, websites, and marketing materials.

    The current administration has directed particular ire towards private “DEI” policies, threatening enforcement through prosecution or other presumably draconian measures. To enforce against “DEI” programs would first require defining the term itself. Proponents suggest it eliminates discriminatory racial preference; opponents say it promotes it. However, the debate over “DEI” is less interesting than what it reveals about government’s role in defining what is morally acceptable.

    What actually changed? It’s not clear any enforcement resources have been directed beyond press releases. The administration’s bark wasn’t followed by a bite; instead, it’s been chasing its own tail. The elimination of “DEI” has manifested almost exclusively as internal policy changes across the federal government, without enforcement actions or penalties actually taken against private organizations. It is clear that the “death” of corporate “DEI” policies was exacerbated by the current administration’s hostility and threats, but was its fate already sealed when it lost the moral approval it had received under the last administration?

    History provides us the answer. The most egregious examples of open discrimination are typically committed by public officials or agents, though these individuals also enjoy the most protections through exceptions carved out by the legislature. The political impetus behind the Civil Rights Act of 1964 coalesced in response to racial discrimination carried out by local and state governments, which the federal government effectively condoned by failing to pass federal legislation prohibiting it. The most highly publicized incidents of discrimination, now iconic of the civil rights movement—Rosa Parks refusing to give up a seat on a Montgomery public bus, the governor of Arkansas ordering state troopers to prevent black children from enrolling at a “white” public school, the Jim Crow laws—all involved the repression of individual rights on the basis of race by state actors.

    The victory of the civil rights movement was enshrined into law with the Civil Rights Act of 1964, which includes Title VII, the source of and predecessor to much of the existing body of federal employment law. However, that victory was compromised when the federal government cut itself a break and turned private businesses into its patsy by creating enforcement mechanisms against them. That trend has further manifested through legal exemptions available to public employers and their agents, including qualified immunity, sovereign immunity, and statutory exemptions from punitive or other damages or entire anti-discrimination statutory titles entirely.

    In short, anti-discrimination law itself is a paradox: a solution proposed by the perpetrator to be applied against the victim. Indeed, the emergence of “DEI” as a necessary principle in the minds of some presumes the irrelevance of Title VII. A body of interpretive case law has done little good to carve out a role for Title VII, and causes of action for “discrimination,” “retaliation,” and others subject to equivalent standards under state law are so ill-defined they can be stretched to fit almost any adverse employment action for a person of a protected class.

    No rational employer would permit or engage in discrimination; rarely do private businesses do so, or not without severe social consequence. Any company engaging in discriminatory practices has already condemned itself in a free market. No business can achieve widespread success while offending the moral sensibilities of the general public. The regulation of private enterprises is merely a restriction on the rights of individuals. It is only when the government allows and enforces racial discrimination as a matter of policy that private discrimination occurs in an equally open and blatant fashion.

    The horrific racial violence and the vicious groups that perpetrated it through until the civil rights movement enjoyed the protection of local and state governments, including the 1964 murders of three civil rights activists whom the state declined to prosecute. The intervention of the federal government to prosecute perpetrators of racial violence was necessary to send the message that such conduct had no such sanction or cover. No specific legal justification or additional statutory tools were required to bring violent criminals to justice.

    Federal and state anti-discrimination law in employment can only operate effectively when it is turned on the government to limit its ability to discriminate against individuals. The morally depraved and cowardly individuals who engage in discrimination on a racial or other basis only have the courage to do so when given the government’s stamp of approval. When that is revoked, these individuals and their collectivist ideas fade into the background. Removal of government sanction of evil is sufficient; government intervention against private or individual rights in the name of the same can only backfire.

    In employment law, causes of action brought under anti-discrimination laws against private individuals have become a method of extortion against private companies for designated protected classes, while doing little to provide any assurance to subjects of discrimination that they are protected. The statutory causes of action provided under state and federal anti-discrimination laws have enabled a tremendous amount of litigation, without any empirical evidence of having reduced or addressed allegations of workplace discrimination.

    Meanwhile, state legislatures continue to carve out exceptions to anti-discrimination law for state bodies and municipal agencies, while the federal government picks and chooses those employment laws it wishes to follow, such as the ADA. The use of Title VII as a weapon against “DEI” policies is merely the other side of the coin.

    The answer to such immoral conduct, including racial or other discrimination in employment, should be to withdraw the moral sanction of government, not invoke it. The former is sufficient, and the latter replaces one evil with another.