Defending Litigation Attacks on DEI Programs: A Status Update

At a Glance

• Before the Supreme Court’s ruling in Students for Fair Admissions vs. Harvard, four Fortune 150 companies were sued over their diversity, equity and inclusion, and environmental, social and governance practices. This alert provides an update on those cases.

---

As we noted in our prior alert, the American Alliance for Equal Rights (Alliance), following the U.S. Supreme Court’s June opinion in Students for Fair Admissions vs. Harvard (SFFA), has sued two large law firms alleging that the fellowship programs they offered to law students violated Section 1981 of the Civil Rights Act of 1866 (Section 1981). But as an earlier alert recognized, law firms are not the only targets of these emerging types of claims, as many prominent businesses — including Fortune 150 stalwarts Starbucks, Amazon, Pfizer and Comcast — faced legal scrutiny regarding their diversity, equity and inclusion (DEI) and environmental, social and governance (ESG) practices even before the SFFA decision. Below, we describe how four notable pre-SFFA cases have proceeded.

• Pfizer. As we’ve previously discussed, in September 2022, a group of anonymous physicians, healthcare professionals, medical students, patients and policymakers — organized as “Do No Harm” in early 2022 — filed suit in the U.S. District Court for the Southern District of New York against Pfizer, seeking to block further implementation of the company’s Breakthrough Fellowship Program (BFP).¹ This program, which was designed to address gaps in recruiting, retaining, and promoting students and young professionals of “Black/African American, Latino/Hispanic and Native American” descent, was challenged as “categorically” discriminating against white and Asian American applicants through claims under Section 1981, Title VI, and other federal, state and city laws. In denying Do No Harm’s emergency motion for a preliminary injunction, Judge Jennifer L. Rochon most notably held that Do No Harm lacked “associational standing” to bring its federal claims. By failing to name any of its members, the organization was unable to establish that at least one identified member had suffered or would suffer harm. Further, Do No Harm was also unable to demonstrate that any of its members were “ready and able” to apply to the BFP or able to meet the minimum program qualifications. Do No Harm has appealed the District Court’s decision to the Second Circuit.² While the appeal is pending, Pfizer’s description of the BFP now reads that it “works to advance students with demonstrated commitment and ability to advance diversity, equity and inclusion for Black/African American, Latino/Hispanic and Native Americans at Pfizer.”³

Read more on JD Supra.