DEI Task Force Update (April 8, 2025)

Diversity  |  April 8, 2025

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Gibson Dunn’s Workplace DEI Task Force aims to help our clients navigate the evolving legal and policy landscape following recent Executive Branch actions and the Supreme Court’s decision in SFFA v. Harvard. Prior issues of our DEI Task Force Update can be found in our DEI Resource Center. Should you have questions about developments in this space or about your own DEI programs, please do not hesitate to reach out to any member of our DEI Task Force or the authors of this Update (listed below).

Key Developments

On April 4, in a 5-4 per curiam opinion just over two pages in length, the Supreme Court granted the U.S. Department of Education’s emergency application to vacate a temporary restraining order preventing it from terminating two teacher-training grant programs. On February 7, the Department had terminated roughly $250 million in grants it found to have “[p]rovide[ed] funding for programs that promote or take part in DEI initiatives or other initiatives that unlawfully discriminate on the basis of race, color, religion, sex, national origin, or another protected characteristic; that violate either the letter or purpose of Federal civil rights law; that conflict with the Department’s policy of prioritizing merit, fairness, and excellence in education; that are not free from fraud, abuse, or duplication; or that otherwise fail to serve the best interests of the United States.” In a March 10 opinion, the U.S. District Court for the District of Massachusetts had granted a temporary restraining order (“TRO”) pausing the grants’ termination, concluding that the Department had failed to follow the proper legal processes as prescribed by the Administrative Procedure Act in cancelling the grant programs. While acknowledging that the appellate courts generally lack jurisdiction over appeals from TROs, the Supreme Court found that the order in this case “carrie[d] many of the hallmarks of a preliminary injunction”—an appealable order—and that the Department was likely to succeed in showing the district court lacked jurisdiction to grant the TRO under the Administrative Procedure Act. The Court’s opinion makes no mention of DEI. Chief Justice Roberts dissented in a one sentence dissent, stating that he would deny the application. Justice Kagan also wrote a dissent, stating that “nothing about this case demanded [the Court’s] immediate intervention.” Justice Jackson, joined by Justice Sotomayor, wrote a longer dissenting opinion in which she asserted that the Court lacked jurisdiction, the Department’s application did not demonstrate the need for emergency relief, and that the Department likely acted unlawfully in terminating the grants as it did. She cautioned against the overuse of the emergency docket, writing “if the emergency docket has now become a vehicle for certain defendants to obtain this Court’s real-time opinion about lower court rulings on various auxiliary matters, we should announce that new policy and be prepared to shift how we think about, and address, these kinds of applications.”

On April 3, twelve state attorneys general, led by Texas Attorney General Ken Paxton, sent a letter to twenty law firms, urging them to comply with the March 17 letters from the Equal Employment Opportunity Commission (EEOC) Acting Chair requesting information relating to the firms’ DEI “related employment practices.” Paxton states that the EEOC’s letters “flagged potential violations of employment discrimination laws, both at the federal and state levels,” specifically through “hiring practices that include diversity fellowships, setting hiring goals with targets for greater representation of minority groups, and DEI programs that entail unlawful disparate treatment in terms, conditions and privileges of employment.” He claims that based on publicly available information “flagged in the EEOC’s letter,” the firms “may have acted in violation of Title VII” and their conduct may “warrant action from state authorities” for “violations of state law.” Paxton urges the firms to “comply with EEOC’s letter” and send the “same responsive information” to the state attorneys general by April 15.

On March 27, Judge Matthew Kennelly of the U.S. District Court for the Northern District of Illinois granted a temporary restraining order blocking, in part, enforcement of Executive Orders (EOs) 14151 and 14173. The court’s decision prohibits the Department of Labor from enforcing the “Certification Provision” of EO 14173—which requires federal contractors and grantees to certify that they do not operate any unlawful DEI programs—nationwide against any federal contractor or grantee. The Order also prohibits the Department of Labor from enforcing the “Termination Provision” of EO 14151—which requires termination of all “equity-related” federal grants—against the plaintiff. The remainder of the EOs’ provisions remain in effect, and the temporary restraining order does not affect other agencies’ ability to enforce the Certification or Termination Provisions. 

The case is Chicago Women in Trades v. President Donald J. Trump, et al., No. 1:25-cv-02005 (N.D. Ill. 2025). In its opinion, the court concluded that the Certification Provision likely violates the First Amendment because it uses threats to funding to suppress protected speech. Judge Kennelly explained that because the EO does not define DEI—let alone unlawful DEI—federal contractors and grantees are left “in a difficult and perhaps impossible situation” in which they must “either take steps now to revise their programmatic activity so that none of it ‘promote[s] DEI’ (whatever that is deemed to mean), decline to make a certification and thus lose their grants, or risk making a certification that will be deemed false and thus subject the grantee to liability under the False Claims Act.” Likewise, the court held that the Termination Provision likely violates the First Amendment on similar grounds. While Judge Kennelly enjoined enforcement of the Termination Provision against the plaintiff alone, he ruled that a broader restraining order of the Certification Provision was warranted because the provision was likely to lead to self-censorship and chilling of speech by organizations and companies nationwide.

The government may appeal the ruling, though any appeal of a temporary restraining order would face jurisdictional obstacles in the Seventh Circuit. The Fourth Circuit recently stayed a similar preliminary injunction that was entered by a district court in Maryland.

On March 24, Catherine Eschbach, newly appointed Director of the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), issued an office-wide memo detailing her plans to implement President Trump’s executive orders “to the fullest extent” and to ensure that the administration’s “policy priorities guide every action” the agency takes. The memo states that 91 days after Trump’s signing of EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”), the OFCCP will “verify all federal contractors have wound down their use of affirmative action plans.” The memo instructs OFCCP staff to review previous affirmative action plans to determine whether they evidence “discriminatory DEI practices,” and notes that the agency will identify targets for civil compliance investigations “to deter DEI programs or principles.” More information on Executive Order 14173 can be found in our January 22, 2025 client alert.

On March 21, FCC Chair Brendan Carr said in an interviewwith Bloomberg that the FCC will only approve a transaction if “doing so serves the public interest,” and that if businesses are “still promoting invidious forms of DEI discrimination,” he did not “see a path forward where the FCC could reach the conclusion that approving the transaction is going to be in the public interest.”

On March 27, Carr sent a letter to Robert Iger, CEO of the Walt Disney Company, announcing an investigation into Disney and its ABC television network “to ensure” that neither is “violating FCC equal employment opportunity regulations by promoting invidious forms of DEI discrimination.” In the letter, Carr acknowledged recent changes by Disney and ABC to their DEI initiatives, but stated that it was “not clear that the underlying policies have changed in a fundamental manner.” Carr highlighted Disney’s “Reimagine Tomorrow” initiative, which he described as a “mechanism for advancing [Disney’s] DEI mission,” as well as the company’s “Inclusion Standards,” which Carr alleged require that at least 50% of writers, directors, crew, and vendors be “selected based on group identity.” The letter also states that it “appears that executive bonuses may also have been tied to DEI ‘performance,’” and that “ABC has utilized race-based hiring databases and restricted fellowships to select demographic groups.” Carr states that the FCC “Enforcement Bureau will be engaging with [Disney and ABC] to obtain an accounting of Disney and ABC’s DEI programs, policies, and practices.” 

Media Coverage and Commentary:

Below is a selection of recent media coverage and commentary on these issues:

• New York Times, “U.S. Presses French Companies to Comply With Trump’s Anti-Diversity Policies” (March 29): Liz Alderman of the New York Times writes that an unknown number of French companies received letters from the American Embassy in France, stating that the Trump Administration’s initiatives to eliminate diversity, equity and inclusion policies would apply to any firm doing business with the U.S. government. The letter provided a form requiring the companies to certify “that they do not operate any programs promoting D.E.I.” For those companies declining to sign the form, the letter instructed “we would appreciate it if you could provide detailed reasons [for declining to sign], which we will forward to our legal services.” Alderman writes that “[a] spokesperson for the French Association of Private Enterprises said the group was waiting for the government to make a ‘coordinated response’ to the Trump administration’s letter.”
• New York Times, “U.S. Seeks to Calm Tempest in Europe Over Trump’s Anti-Diversity Policies” (April 2): Liz Alderman of the New York Times provides an update on the letters sent from the State Department to numerous French companies (as well as companies in several other European nations), writing that “the State Department tried to walk back the letters, saying the compliance requirement applies to companies only if they are ‘controlled by a U.S. employer’ and employ U.S. citizens.” Alderman reports that the letters said they “applied to all suppliers and contractors of the U.S. government, regardless of their nationality and the country in which they operate.” Alderman further reports the State Department further defended the certification requests, noting that they impose “no ‘verification’ . . . beyond asking contractors and grantees to self-certify their compliance. . . .In other words, we are just asking them to complete one additional piece of paperwork.” Representatives of several European countries whose companies received the State Department’s letter, including France, Belgium, and Denmark, all made statements in opposition to the State Department’s request, reminding companies that they must continue to follow the laws of those countries while operating in them.
• Wall Street Journal, “‘Anti-Woke’ in the U.S., DEI at Home: the New Playbook for European Companies” (March 20): Ben Dummett and Joe Wallace of the Wall Street Journal report that European companies are adapting to the Trump Administration’s approach to DEI by shifting practices in their U.S. operations. He writes that companies aim to abide by European regulations while avoiding “lawsuits or consumer boycotts in the faster-growing U.S. market.” Dummett and Wallace quote Jeanne Martin of U.K.-based ShareAction, a responsible-investment nonprofit, as saying that “European companies choosing to pause or roll back DEI initiatives could face significant regulatory risk and reputational backlash in Europe.” Given the divide between European and American approaches on DEI, companies’ DEI strategies differ by location, Dummett reports. Some European companies, they report, have pared back diversity commitments and programs globally, while others have done so only for their American operations. Dummett and Wallace also report that American companies with a European presence are “seeking to strike a balance” across continents.
• Reuters, “Disney investors reject a proposal to withdraw from HRC’s diversity index” (March 20): Reuters’ Dawn Chmielewski reports that Disney shareholders rejected a proposal to end the company’s participation in the Human Rights Campaign’s corporate equity index, which evaluates workplaces on LGBTQ+ equality. Only 1% of shareholders voted in favor of the proposal. According to Chmielewski, the proposal’s proponents argued that Disney’s participation in the index hurt its stock price and urged the company to “move back to neutral” on political issues. Disney, which received a perfect score in the 2025 index ranking, recommended voting against the shareholder proposal. Chmielewski reports that several other major corporations have recently withdrawn from the annual ranking. 
• NBC News, “Poll: American Voters are deeply divided on DEI Programs and political correctness” (March 18): NBC News reporter Bridget Bowman writes that a recent NBC News poll found Americans are divided on whether they support DEI programs in the workplace. According to the poll, 48% of registered voters said DEI programs should continue. Bowman reports that the poll indicated sharp divides across party lines: 85% of Republicans support eliminating DEI programs, while 85% of Democrats would maintain DEI programs in the workplace. Among independent voters, 59% support the programs. Bowman also reports on age and gender differences. Of women ages 18 to 49, 67% support the programs, while only 40% of men in the same age bracket agree. The poll also indicated a divide “along racial lines,” with 80% of Black voters supporting DEI programs and “a majority of white voters saying DEI programs should end.”
• Bloomberg Law, “‘Diversity’ Becomes ‘Belonging’ as Companies Shift DEI Lingo” (March 13): Bloomberg Law’s Clara Hudson reports that, in corporate 10-K reports filed between January 1 and March 12 of this year, use of the acronym “DEI” fell 55% compared to the same date range in 2024, with 180 uses compared to 396. Similarly, she reports that the phrase “diversity, equity and inclusion” appeared 422 times this year compared to 991 times the year before, a 57% decrease. Hudson reports that companies instead used phrases like “inclusion,” “merit-based hiring,” and “belonging” in their 10-K reports. She writes that “DEI language wasn’t a ubiquitous feature in 10-K annual reports until companies ramped up efforts following the Black Lives Matter movement in 2020,” and notes that the current language shift began prior to the second Trump Administration. She cautions, however, that this shift in language in 10-K forms does not “necessarily mean a company is backing away from its diversity efforts.”

Case Updates:

Below is a list of updates in new and pending cases:

1. Contracting claims under Section 1981, the U.S. Constitution, and other statutes:

• Becker et al. v. Citigroup, No. 24-cv-60834 (S.D. Fl. 2024): On May 17, 2024, two plaintiffs filed a putative class action against Citigroup (Citi), in relation to its ATM Community Network program, which waives ATM fees for customers of certain banks, including minority-owned banks. Plaintiffs, users of banks that did not qualify for a fee-waiver, alleged that Citi intentionally discriminated against them and that the Community Network program had an express goal of racial discrimination. Citi moved to dismiss for lack of standing and failure to state a claim. Citi argued that the plaintiffs did not allege that their banks did not participate in the fee-waiver program because of race.
  • Latest update: On March 28, 2025, the court granted the defendant’s motion to dismiss. The court agreed with Citi that plaintiffs lacked standing because they failed to plead that their banks “made attempts to participate in Citibank’s policy but were unable to or blocked from doing so.” The court also found that the plaintiffs lacked injury in fact, reasoning that “the Court does not consider Plaintiffs harmed by the requirement they pay out-of-network fees to utilize Citibank’s ATMs as customers of two of Citibank’s close competitors.” Because the court found that the plaintiffs lacked standing, it did not address the merits of their claims.
• Bolduc v. Amazon.com Inc., No. 4:22-cv-615 (E.D. Tex. 2022): On July 20, 2022, American First Legal (AFL) filed a putative federal class action lawsuit on behalf of a white plaintiff who sought to become an Amazon delivery service provider (DSP) but claimed she was ineligible for a grant offered to offset the program’s start up costs due to her race. On April 25, 2024, the court dismissed the case without prejudice. The court found that Bolduc lacked standing to sue because she never applied to Amazon’s DSP program and thus has suffered no actual or imminent injury. The court concluded that “Bolduc falls outside the class of individuals potentially suffering a direct and personal injury: DSP owners who have been denied any contractual benefit due to their race.” Because the issue of standing was sufficient to dismiss the case, the court did not consider whether Bolduc stated a claim under Section 1981. On April 26, 2024, Bolduc filed a notice of appeal.
  • Latest update: On March 24, 2025, the plaintiff filed a single-page unopposed motion to withdraw her appeal. On March 26, 2025, the court dismissed the appeal.
• Do No Harm v. Society of Military Orthopaedic Surgeons, No. 1:24-cv-03457 (D.D.C. 2024): On December 11, 2024, Do No Harm filed a complaint against the Society of Military Orthopaedic Surgeons, the U.S. Navy, and the Department of Defense challenging a jointly run scholarship program that allegedly provides funding to female students and students of racial backgrounds that are “underrepresented in orthopaedics.” According to Do No Harm, the program excludes white, male applicants and therefore violates Section 1981 and the equal protection component of the Fifth Amendment.
  • Latest update: On March 18, 2025, the parties filed a joint motion to stay the case and to permit the parties to file a joint status report by April 18, 2025. The parties reported that “they are discussing ways to resolve [the] case without further burdening the [c]ourt.” The parties stated that during the requested stay they “will meet and confer in good faith to explore possible amicable resolution of [the] case.” On March 26, 2025, in a minute order reflected on the case docket, the court granted in part and denied in part the parties’ joint motion to stay the case. The court granted the motion to stay “to the extent that it seeks to vacate all pending deadlines in [the] case” and denied the motion “in all other respects.” The court ordered that the parties shall appear before the court for a status conference on April 18, 2025.
• Valencia AG, LLC v. New York State Off. of Cannabis Mgmt. et al., No. 5:24-cv-116 (N.D.N.Y. 2024): On January 24, 2024, Valencia AG, a cannabis company owned by white men, sued the New York State Office of Cannabis Management for discrimination, alleging that New York’s Cannabis Law and regulations favored minority-owned and women-owned businesses. The regulations include goals to promote “social & economic equity” (SEE) applicants, which the plaintiff claims violate the Fourteenth Amendment’s Equal Protection Clause and Section 1983. The plaintiff sought a permanent injunction against the regulations and a declaration that the use of race and sex in the New York Cannabis Law violates the Fourteenth Amendment. On April 24, 2024, the defendants moved to dismiss for lack of standing and failure to state a claim. Among other things, the defendants argue that there is no risk of injury because “the Board and Office have interpreted the Cannabis Law and implementing regulations to be satisfied by front-end measures to aid [minority] SEE applicants such as community outreach, low-burden applications, and assistance if an application is found to be defective.” The defendants also noted that they have submitted affidavits indicating that “applications are being reviewed solely for completeness and correctness, and thus that the race and gender of an applicant will play no role in whether an application is approved.”
  • Latest update: On March 25, 2025, the court granted the defendants’ motion to dismiss based on lack of subject matter jurisdiction. The court reviewed the affidavits presented by the defendants and concluded the plaintiff lacked standing because the evidence contradicts the plaintiff’s factual allegations that the process of ranking and reviewing applications involves unequal treatment based on race. The court also noted that aspirational goals—here, to have a certain percentage of licenses given to SEE applicants—do not plausibly suggest an injury-in-fact. Additionally the court found that “even if standing were found to exist related to Plaintiff’s claims . . .[,] they have been rendered moot,” by the Cannabis Control Board’s resolution that it would ensure the plaintiff’s application be reviewed and granted a license if it meets the stated requirements.

2. Employment discrimination and related claims:

• Arsenault v. HP Inc., No. 3:24-cv-00943 (D. Conn. 2024): On May 29, a white former employee of HP Inc. filed suit, alleging that his termination violated Title VII and 42 U.S.C. § 1981. The complaint alleges that during a review meeting in August 2022, the plaintiff voiced agreement with the opinion of another team member that the company was spending too much time on DEI practices, and as a result, his managers accused him of racism. The complaint also alleges that the plaintiff was verbally abused by a co-worker, but the company took no action after he complained. The plaintiff was terminated in March 2023.
  • Latest update: On March 13, 2025, in a single-page stipulation, the parties entered a stipulation of dismissal with prejudice and without attorney fees or costs to any party.
• Dill v. Int’l Bus. Machs. Corp., No. 1:24-cv-00852 (W.D. Mich. 2024): On August 20, 2024, a former IBM employee sued the company for wrongful termination under Title VII and 42 U.S.C. § 1981, claiming that IBM terminated his employment due to his race (white) and gender (male). In his complaint, the plaintiff alleged that IBM has a policy incentivizing its management to terminate white men so that the company’s workforce has a higher percentage of minorities and women, and that he was terminated according to this policy. To support is claim, the plaintiff cited to the company’s 2022 and 2023 Annual Reports, as well as its 2024 Notice of Annual Meeting and Proxy Statement, the latter of which acknowledges that the company applies a “diversity modifier . . .based on [its] progress in creating and developing a diverse executive population” when determining executive compensation. The plaintiff also cited a statement from IBM’s CEO at a corporate town hall, in which the CEO allegedly threatened to reduce executive bonuses if the company did not move forward on its diversity goals and detailed the percentage of representation he wished to see for various protected groups. The plaintiff alleged his supervisor was motivated by these policies and statements in deciding to terminate his employment. On October 24, 2024, IBM moved to dismiss the complaint for failure to state a claim.
  • Latest update: On March 26, 2025, the court denied IBM’s motion to dismiss. Relying on the corporate statements and policies detailed in the complaint, the court concluded that—accepting the plaintiff’s allegations as true for purposes of the motion—the complaint pled sufficient facts to suggest the plaintiff’s race and/or gender motivated the company to terminate his employment.
• Gerber v. Ohio Northern University, et al., No. 2023-cv-1107 (Ohio. Ct. Common Pleas Hardin Cnty. 2023): On June 30, 2023, a law professor sued his former employer, Ohio Northern University, for terminating his employment after an internal investigation determined that he bullied and harassed other faculty members. On January 23, 2024, the plaintiff, now represented by America First Legal, filed an amended complaint. The plaintiff claims that his firing was in retaliation for his vocal and public opposition to the university’s stated DEI principles and race-conscious hiring, which he believed were illegal. The plaintiff alleged that the investigation and his termination breached his employment contract, violated Ohio civil rights statutes, and constituted various torts, including defamation, false light, conversion, infliction of emotional distress, and wrongful termination in violation of public policy.
  • Latest update: On March 21, 2025, the parties entered a notice of agreed settlement. As part of the settlement, the parties agreed to reinstate the plaintiff to his professorship, whereby he will immediately tender a notice of retirement. The Ohio Northern University acknowledged that the plaintiff “provided outstanding teaching, scholarship, and service.” In exchange for these concessions, amongst others, the plaintiff agreed to release all claims against all defendants and will not pursue litigation in the future.
• Missouri v. Int’l Bus. Machs. Corp., No. 24SL-CC02837 (Cir. Ct. of St. Louis Cty. 2024):  On June 20, 2024, the State of Missouri filed a complaint against IBM in Missouri state court, alleging that the company violated the Missouri Human Rights Act by using race and gender quotas in its hiring and by basing employee compensation on participation in allegedly discriminatory DEI practices. The complaint cited a leaked video in which IBM’s Chief Executive Officer and Board Chairman, Arvind Krishna, allegedly stated that all executives must increase representation of ethnic minorities in their teams by 1% each year to receive a “plus” on their bonus. The Missouri Attorney General sought to permanently enjoin IBM and its officers from utilizing quotas in hiring and compensation decisions. On September 13, 2024, IBM moved to dismiss the suit, arguing that the “plus” bonus is not a “rigid racial quota,” but a lawful means of encouraging “permissible diversity goals.” IBM also argued that Missouri failed to assert sufficient facts to show that the “plus” bonus influenced any employment decisions in the state. On February 10, 2025, the court granted IBM’s motion to dismiss in a one-sentence order without any explanation. The court gave Missouri 30 days to amend its complaint.
  • Latest update: On March 14, 2025, Missouri filed a notice of appeal to the Missouri Court of Appeals regarding “whether the trial court erred in granting IBM’s motion to dismiss.”

3. Challenges to statutes, agency rules, and regulatory decisions:

• California et al. v. U.S. Department of Education et al., No. 1:25-cv-10548 (D. Mass. 2025): On March 6, 2025, the states of California, Massachusetts, New Jersey, Colorado, Illinois, Maryland, New York, and Wisconsin (collectively, “the plaintiff states”) sued the U.S. Department of Education. The plaintiff states argue that the termination of the grants violates the Administrative Procedure Act (APA) and seek declaratory and injunctive relief to vacate and set aside the termination of all previously awarded grants under the TQP and SEED programs. On March 6, the plaintiff states filed a motion for a temporary restraining order. The plaintiff states argued that the “abrupt and immediate” termination of the programs threatens “imminent and irreparable” harm. The motion highlighted the programs’ purpose to address a critical shortage of highly qualified and licensed K-12 teachers. The district court granted the plaintiff states’ TRO request on March 10, 2025. The TRO requires the Department of Education to immediately restore the grants to the pre-existing status quo and enjoins it from implementing, maintaining, or reinstating the terminations. On March 11, the Department of Education appealed the TRO to the U.S. Court of Appeals for the First Circuit, and on March 12, filed an emergency motion to stay the district court case pending appeal and for immediate administrative stay in the First Circuit. The district court denied the motion to stay on March 13.
  • Latest update: On March 21, 2025, the First Circuit denied the Department of Education’s motion to stay pending the appeal, finding that the Department’s termination of educational grants was insufficiently explained, likely arbitrary and capricious, and that the harm to grant recipients outweighed the potential harm to the Department. April 4, the Supreme Court granted the Department of Education’s emergency application to vacate the TRO. The Court’s opinion makes no mention of DEI but rather held that the Department was likely to succeed in showing the district court lacked jurisdiction to grant the TRO under the Administrative Procedure Act. Chief Justice Roberts, Justice Kagan, Justice Jackson, and Justice Sotomayor dissented.
• De Piero v. Pennsylvania State University, No. 2:23-cv-02281 (E.D. Pa. 2023): A white male professor sued his employer, Penn State University, claiming that university-mandated DEI trainings, discussions with coworkers and supervisors about race and privilege in the classroom, and comments from coworkers about his “white privilege” created a hostile work environment that led him to quit his job. He claimed that after he reported this alleged harassment and published an opinion piece objecting to the impact of DEI concepts in the classroom, the university retaliated against him by investigating him for bullying and aggressive behavior towards his colleagues. The plaintiff alleged harassment, retaliation, and constructive discharge in violation of Title VI, Title VII, Section 1981, Section 1983, the First Amendment, and Pennsylvania civil rights laws. On March 6, 2025, the court granted summary judgment to the defendant on the plaintiff’s hostile work environment claims. The court found that the behaviors complained of by the plaintiff, including “campus wide emails” pertaining to racial injustice, “being invited to review scholarly materials,” and “conversations about harassment levied by and against [the plaintiff],” could not reasonably be found to rise to the level of severe harassment. As to the “pervasive” conduct prong, the court explained that of the twelve incidents in the complaint, no “racist comment” was directed at the plaintiff and “only a few” involved actions that were directed at the plaintiff at all.
  • Latest update: On March 20, 2025, the plaintiff filed a supplemental brief in support of his retaliation claims under Title VII and Pennsylvania state law, arguing that these claims should proceed to trial. He presents what he asserts are undisputed facts to support his claims, including being reported for “micro aggressions” after objecting to racial harassment, colleagues lodging false claims against him, and facing disciplinary actions and salary clawbacks as retaliation. He requests that the court either grant summary judgment in his favor on this basis, or, if the court finds that these facts are disputed, allow his retaliation claims to proceed to trial. On March 27, 2025, the defendants filed a supplemental reply brief in support of summary judgment, arguing that the plaintiff’s putative Title VII and PHRA retaliation claims failed as a matter of law because the plaintiff cannot prove the defendants took adverse employment action against him, or there is no causal link between his alleged protected activity and adverse actions taken by the defendants.
• Do No Harm v. Gianforte, No. 6:24-cv-00024 (D. Mont. 2024): On March 12, 2024, Do No Harm filed a complaint on behalf of “Member A,” a white female dermatologist in Montana, alleging that a Montana law requiring the governor to “take positive action to attain gender balance and proportional representation of minorities resident in Montana to the greatest extent possible” when making appointments to the twelve-member Medical Board violates the Fourteenth Amendment. Do No Harm alleged that since ten seats are currently held by six women and four men, Montana law requires that the remaining two seats be filled by men, which would preclude Member A from holding the seat. Following Governor Gianforte’s motion to dismiss, on February 5, 2025, the court dismissed the complaint without prejudice. On March 7, 2025, the plaintiff filed a second amended complaint.
  • Latest update: On March 14, 2025, the plaintiff filed an unopposed motion to stay the case, as Montana is currently considering legislation that would significantly amend the challenged statute to remove the language at issue. According to the plaintiff, if passed, the bill would moot this case. On the same day, the court issued a one-page order granting the plaintiff’s motion to stay the case, pending the state legislature’s action on H.B. 215. The order also required the parties to file a status report within 14 days after the legislative session concludes.

Legislative Updates

On February 13, Congressman Gus Bilirakis (R-FL) introduced H.R. 1282, the “Eliminate DEI in Colleges Act,” which would “prohibit Federal funding for institutions of higher education that carry out diversity, equity, and inclusion initiatives[.]”  The bill defines “diversity, equity, and inclusion” as “the concept according to which individuals are (1) classified on basis of race, color, sex, national origin, gender identity, or sexual orientation; and (2) afforded differential or preferential treatment on the basis of such classification.”  It provides that “no institute of higher education shall be eligible” for any federal funding unless the institution certifies to the Secretary of Education that it “(1) does not and will not carry out any program, project, initiative, or other activity the primary purpose of which is to advocate, promote, or otherwise support diversity, equity, and inclusion; and (2) does not and will not maintain any office or other entity within the institution to advocate, promote, or otherwise support diversity, equity, and inclusion.”  The bill further directs the Secretary to “publish regulations to implement and enforce” the law.  It provides that an institution may appeal the Secretary’s determination to terminate funding, and that an administrative law judge’s decision “shall be considered to be a final agency action.”

On February 28, Florida State Senator Nick DiCeglie (R) introduced Senate Bill 1710, which imposes requirements and limitations on diversity, equity, and inclusion in state agencies and “medical institutions of higher education.”  The bill defines “DEI” as including efforts “to manipulate or influence the composition of employees with reference to race, sex, color, or ethnicity” or to promote or adopt “differential treatment” or policies or procedures “implemented with reference to race, color, or ethnicity,” as well as programs and activities related to “race, color, ethnicity, gender identity, or sexual orientation.”  The definition excludes “equal opportunity or equal employment opportunity materials designed to inform a person about the prohibition on discrimination based on protected status under state or federal law.”  The bill would require any state agency “applying for a federal health care-related grant relating to diversity, equity, and inclusion” to “[p]ublish on its website all materials, requirements, and instructions related to the federal grant application which are in the state agency’s possession” and to submit a copy of the grant proposal to the Health Policy Committee in the Florida Senate and the Health and Human Services Committee in the Florida House of Representatives.  The bill would prohibit state agencies from expending any appropriated funds or funds received from “any other source” to “establish, sustain, support, or staff a DEI office or to contract, employ, engage, or hire a person to serve as a DEI officer.”  The bill would further prohibit all potential recipients of state contracts or funds from “using” DEI “material.”  In addition, the bill would require any medical institution of higher education—defined as “a Florida College System institution or state university, as those terms are defined in s. 1000.21, that offer bachelor’s, master’s, or doctoral degrees, or a trade school that receives state funds and offers health care-related degrees, certification programs, or training”—to mandate “a standardized admissions test” and to “provide letter grade-based assessments for each course required to graduate.” 

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The following Gibson Dunn attorneys assisted in preparing this client update: Jason Schwartz, Mylan Denerstein, Zakiyyah Salim-Williams, Cynthia Chen McTernan, Zoë Klein, Cate McCaffrey, José Madrid, Jenna Voronov, Emma Eisendrath, Kristen Durkan, Simon Moskovitz, Teddy Okechukwu, Beshoy Shokralla, Heather Skrabak, Maryam Asenuga, Angelle Henderson, Kameron Mitchell, Lauren Meyer, Chelsea Clayton, Maya Jeyendran, Albert Le, Allonna Nordhavn, Felicia Reyes, Godard Solomon, Laura Wang, and Ashley Wilson.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Labor and Employment practice group, or the following practice leaders and authors:

Jason C. Schwartz – Partner & Co-Chair, Labor & Employment Group
Washington, D.C. (+1 202-955-8242, jschwartz@gibsondunn.com)

Katherine V.A. Smith – Partner & Co-Chair, Labor & Employment Group
Los Angeles (+1 213-229-7107, ksmith@gibsondunn.com)

Mylan L. Denerstein – Partner & Co-Chair, Public Policy Group
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Washington, D.C. (+1 202-955-8571, msenger@gibsondunn.com)

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