Was This an Example of “Illegal DEI”? We’ll Never Know For Sure.

Diversity, equity, and inclusion—better known as DEI—has been a hot topic lately. While DEI itself isn’t inherently illegal, critics have latched onto the idea of so-called “illegal DEI.” What exactly does that mean? Unclear. But a recent federal court case involving a law student who said she was discouraged from applying for a summer internship because of diversity-focused hiring criteria was giving me “illegal DEI” vibes.

The catch? Even if everything she claimed was true, the court never actually ruled on whether the hiring policy was legal or not. Here’s why.

The Lawsuit That Never Got Off the Ground

The job posting, issued by a law firm, encouraged applications from students who came from an ethnically or culturally diverse background or identified as LGBT. The student, a white and straight law student, claimed that this language made her believe she was ineligible and thus did not apply. She alleged that the firm’s hiring criteria were discriminatory because they excluded candidates who did not fit the specified categories.

The court dismissed the case because the student lacked “standing.” To bring a lawsuit, a person must show they suffered real harm or were about to. The court ruled that simply feeling discouraged wasn’t enough. The student didn’t apply, didn’t take any steps toward applying, and had no history of applying for similar positions. Without clear proof that she was “ready and able” to apply but was blocked, the case couldn’t proceed.

Indeed, a plaintiff must have a “concrete injury”—more than stubbing her toe on the courthouse steps. More than merely being “interested” in a position but never applying for it. The ruling underscored that courts do not decide on hypothetical or abstract concerns. The judge also noted that the plaintiff did not make any effort to inquire about whether she could apply despite her background, further weakening her claim.

Additionally, the court rejected the plaintiff’s argument that the law firm’s job posting created a discriminatory barrier. The decision clarified that unless an individual takes meaningful steps toward applying and faces an actual denial, they cannot claim legal harm. The ruling serves as a reminder that discrimination claims must be grounded in tangible evidence, not speculation.

Because the student couldn’t meet this legal requirement, the court ruled it had no authority to hear the case and dismissed it.

The Bottom Line: Ensure Fair and Inclusive Hiring Practices

This case serves as a reminder that discrimination claims require concrete harm, not just a hypothetical complaint or regret about a missed opportunity.

Employers generally should strive to create job opportunities that are welcoming to all candidates, do not exclude or discourage individuals from any protected class, and ultimately result in hiring based on merit. This means crafting clear and inclusive job postings, maintaining thorough documentation of hiring practices, and training HR professionals and managers to recognize and prevent bias.