DEI Task Force Update (May 16, 2025)
Diversity | May 16, 2025
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:
As we reported in our January 22 Client Alert, on January 21, 2025, President Trump issued Executive Order 14173, which, among other things, directed the Attorney General, “in consultation with the heads of relevant agencies,” to submit to the White House a report “containing recommendations for enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.” The report must contain proposed “strategic enforcement plan[s]” identifying the “most egregious and discriminatory DEI practitioners in each sector of concern.” To facilitate this report, each agency is instructed to identify “up to nine” large companies or non-profits for “potential civil compliance investigations,” as well as “[l]itigation that would be potentially appropriate for Federal lawsuits, intervention, or statements of interest.” May 21, 2025 marks 120 days since the White House issued EO 14173, and so we expect the Attorney General to submit her report next week. It is unclear whether any aspect of that report will be made public at that time. Stay tuned for further updates from the Gibson Dunn DEI Task Force.
On May 12, it was reported that the Equal Employment Opportunity Commission (“EEOC”) has launched an investigation into Harvard University’s hiring practices under Title VII. According to documents leaked to the Washington Free Beacon, Acting EEOC Chair Andrea Lucas filed a charge against the university on April 25. The charge accuses Harvard of discriminating against “white, Asian, male, or straight employees, applicants, and training program participants” in hiring, promotion, compensation, and career development programs. The charge also alleges that Harvard violated Title VII in relation to thirteen different fellowships and training programs by prioritizing applicants of color. The charge states that it is “based on publicly available information regarding Harvard, including, but not limited to, documents and information published on Harvard and its affiliates’ public webpages (including archived pages); public statements by Harvard and its leadership; and news reporting.”
On May 12, civil rights membership organization Americans for Equal Opportunity (“AEO”) sent a letter to the EEOC alleging discrimination by Sponsors for Educational Opportunity (“SEO”) and 44 law firms. AEO sent the letter on behalf of three AEO members who applied to SEO’s Law Fellowship program, which places incoming law students into paid summer internships at participating law firms. Although eligibility for the SEO Fellowship is not limited by demographic criteria, the letter alleges that the AEO members were rejected from the Fellowship program because they do not come from SEO’s “preferred racial or ethnic backgrounds.” The letter also asserts that the 44 named firms “participate in the SEO Fellowship to satisfy their target quotas of Black, Hispanic, and Native American candidates in proportions that the Sponsor Firms apparently cannot achieve through traditional, merit-based hiring practices.” AEO thus “requests that the EEOC initiate an investigation regarding the recruiting and hiring practices of SEO and its Sponsor Firms.”
On May 8, U.S. District Judge Loren L. AliKhan heard arguments on Susman Godfrey LLP’s motion for summary judgment, and the federal government’s motion to dismiss, in a lawsuit challenging President Trump’s April 9th Executive Order titled “Addressing Risks from Susman Godfrey.” The EO asserts that Susman Godfrey engages in hiring discrimination and that the firm “spearheads efforts to weaponize the American legal system and degrade the quality of American elections.” The EO directs agencies to suspend active security clearances held by Susman Godfrey attorneys and limit their access to federal buildings. During oral argument, Judge AliKhan asserted that the government lacked evidence that Susman Godfrey engaged in race or gender discrimination, pointing to language on the firm’s website stating that it does not discriminate based on race, ethnicity, or any other statutorily protected characteristics. Judge AliKhan indicated that she intends to rule on the pending motions soon.
On May 8, U.S. District Judge William G. Young asked the U.S. Department of Justice to provide him the Trump Administration’s definition of the term “diversity, equity and inclusion.” Judge Young presides over a lawsuit brought by a coalition of 16 states against the U.S. Department of Health and Human Services and certain agencies, which challenges the Administration’s directive requiring that research grant applications and other funding undergo review to determine whether they align with the Administration’s policy goals, including DEI goals. In a hearing regarding whether the states have jurisdiction to sue, Judge Young indicated that it was not clear to him how the Administration defines the term “DEI,” stating “This is healthcare . . . This is research to advance healthcare for all our citizens, so I don’t know what [DEI] means in this circumstance.”
On May 7, President Trump nominated Brittany Bull Panuccio to be a Commissioner on the EEOC. Panuccio, a current Assistant U.S. Attorney in West Palm Beach, Florida, would serve alongside current Commissioner Kalpana Kotagal and Commissioner and Acting Chair Andrea Lucas. Panuccio’s appointment would restore the EEOC’s three-member quorum, allowing the Commission to once again vote on policy and regulatory matters, issue guidance, and authorize certain lawsuits. The Commission has not had a quorum since January 2025.
On May 6, Chairman of the U.S. Federal Trade Commission Andrew Ferguson stated that the agency will investigate whether companies are colluding on DEI metrics, which he asserted could be a “potential antitrust problem.” Ferguson made the statement while appearing on Donald Trump Jr.’s podcast, “Triggered.” He characterized DEI metrics as “[o]ne of the forms of collusion that affects American workers” about which he is most concerned. He noted, “That’s a potential antitrust problem that the Commission is going to look at very strongly and take very seriously.” Ferguson also stated on May 6 that the FTC would examine corporate ESG initiatives, stating “We’re looking at this right now. It’s really important to us.”
Media Coverage and Commentary:
Below is a selection of recent media coverage and commentary on these issues:
- Law360, “Potential For DEI-Related Suits Vexes Employers, Report Says” (May 7): Patrick Hoff of Law360 reports on a recent survey indicating that, while employers are increasingly concerned about DEI-related litigation risks, few are significantly changing their programs. The survey, which captured the views of nearly 350 C-suite executives from a range of industries, found that 45% of employers are concerned about DEI-related litigation over the next year—up from about 20% in the previous two years—and that over 80% anticipate that the Trump administration’s anti-DEI stance will impact their businesses in the first year of the administration. At the same time, 45% of employers polled said that they are not planning to roll back DEI programs in response to the administration’s Executive Orders and policies, and only 7% state that they plan a full overhaul of DEI policies.
- Washington Post, “‘DEI’ Vanishing from Corporate Filings, Mirroring Business World’s Retreat” (April 30): Eric Lau and Taylor Telford of The Washington Post report that mentions of DEI in companies’ SEC filings have fallen as firms respond to mounting scrutiny and legal threats from conservative activists. In 2024, the average S&P 500 company referenced DEI just four times in their Form 10-K filings, the fewest average mentions of DEI since 2020, and down from a peak of 12.5 in 2022. Lau and Telford quote Andrew Jones, a principal researcher at The Conference Board, as saying that “[t]he number one way that companies have responded to DEI scrutiny and backlash is adjusting language.” Jones noted that while approaches vary, many firms are “being more quiet and discreet, and dropping politically charged terminology.” For example, “inclusion” and “belonging” are now favored over “DEI,” “diversity,” and “equity,” with companies increasingly referencing terms such as “inclusive workplaces” and “diverse perspectives.”
- Reuters, “Trump’s First 100 Days Target Diversity Policies, Civil Rights Protections” (April 30): Bianca Flowers and Disha Raychaudhuri of Reuters report on President Trump’s DEI-related initiatives during his first 100 days in office. The authors highlight, among other things, the Trump administration’s revocation of a longstanding executive order mandating equal employment opportunity, its cancellation of government contracts tied to DEI, and its revocation of federal funding for various projects meant to help women and minorities.
- CNBC, “Corporate Sponsors are Backing Away from LGBTQ+ Pride Organizations” (April 27): Russell Leung of CNBC reports that U.S. corporations are backing away from sponsoring LGBTQ+ pride organizations and events, due to economic uncertainty, political pressure, and changing corporate priorities around DEI. According to Leung, both Seattle Pride and NYC Pride face $350,000 funding deficits, with San Francisco Pride and Minnesota’s Twin Cities Pride reporting $200,000 shortfalls. Other cities’ pride events face similarly tight budgets. Leung also reports that some LGBTQ+ groups are reevaluating their sponsorship relationships in light of their sponsors’ DEI policies. For example, Twin Cities Pride declined a $50,000 sponsorship offer from Target, citing Target’s recent changes to its supplier diversity commitments. Similarly, Cincinnati Pride rejected funding from previous partners after reviewing their nondiscrimination policies.
- Simple Flying, “FAA To Update Airport Grant Requirements: Removing Environmental Protection & DEI Requirements” (April 25): Rytis Beresnevičius, writing for Simply Flying, reports that the Federal Aviation Administration (“FAA”) has issued notice that it may update its Airport Improvement Program (“AIP”) grant requirements to incorporate recent legislative provisions in the FAA Reauthorization Act of 2024 and certain DEI-related Executive Orders. Should the notice become final, airports “must agree to comply with certain assurances” to receive AIP grant funding for planning, development, and noise mitigation. Those assurances include rolling back DEI policies in line with recent Executive Orders and ceasing compliance with now-rescinded Executive Orders, such as those imposing affirmative action obligations on government contractors.
- Wall Street Journal, “Paramount in Talks with FCC Over Diversity Policy Concessions for Merger” (April 24): Jessica Toonkel, Josh Dawsey, and Drew FitzGerald of the Wall Street Journal report that the Federal Communications Commission (“FCC”) may require changes to Paramount Global’s DEI policies as a precondition for approving Paramount’s merger with Skydance Media. The authors report that FCC Chairman Brendan Carr has “has urged telecom and media companies to limit their diversity, equity and inclusion policies as a precondition for the agency to consider mergers and acquisitions.”
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:
- American Alliance for Equal Rights v. American Airlines, No. 25-125 (N.D. Tex. 2025): On February 11, 2025, the American Alliance for Equal Rights (“AAER”) sued American Airlines and Supplier.io, alleging that American Airlines’s suppler diversity program violates Section 1981. AAER alleges that eligibility for the supplier diversity program unlawfully depends on race, requiring that businesses “be at least 51% owned, operated and controlled by” minorities, women, veterans, service-disabled veterans, disabled individuals, or members of the LGBTQ community. AAER claims that it has members who are ready and able to apply to the program, but do not meet the diversity eligibility requirements.
- Latest update: On May 16, 2025, the parties filed a stipulation of dismissal after having reached the following agreement: (1) for the later of five years or so long as prohibited by applicable law, American Airlines agrees it not require businesses to be owned or operated by individuals of any particular race or ethnicity in connection with its supplier program or when awarding supplier contracts; (2) for four years after the entry of the stipulation, American Airlines agrees that it will add the following disclaimer to any supplier relationship website it maintains: “Consistent with federal law, American Airlines does not consider race or ethnicity in the award of contracts or in the selection of vendors or suppliers”; (3) Supplier.io agrees it will not require businesses to be owned or operated by individuals of any particular race or ethnicity to register or do business with Supplier.io unless otherwise required by applicable law; and (4) Supplier.io agrees it will add to its website a statement that makes it clear that its portal and platform are open to all registrants, regardless of size or demographic information and must remove statements that only “diverse” suppliers may register for its services.
- American Alliance for Equal Rights v. Southwest Airlines Co., No. 24-cv-01209 (N.D. Tex. 2024): On May 20, 2024, AAER filed a complaint against Southwest Airlines, alleging that the company’s ¡Lánzate! Travel Award Program, which awards free flights to students who “identify direct or parental ties to a specific country” of Hispanic origin, unlawfully discriminates based on race. AAER seeks a declaratory judgment that the program violates Section 1981 and Title VI, a temporary restraining order barring Southwest from closing the next application period (set to open in March 2025), and a permanent injunction barring enforcement of the program’s ethnic eligibility criteria. On March 3, 2025, AAER moved for summary judgment. On April 9, Southwest, which no longer operates the challenged program, filed a Motion for Entry of Judgment of $0.01 in nominal damages for AAER.
- Latest update: On May 14, 2025, the court issued an order stating its intent to enter final judgment for AAER because Southwest has “unconditionally surrendered to the entry of judgment for complete relief” in AAER’s favor. The court stated it would not reach a decision on the merits of the case, as doing so would require the parties to continue to litigate, “potentially at great cost,” when Southwest has already agreed to judgment in AAER’s favor. The parties have 14 days to file an opposition.
- Chicago Women in Trades v. President Donald J. Trump, et al., No. 1:25-cv-02005 (N.D. Ill. 2025): On February 26, 2025, Chicago Women in Trades (“CWIT”), a non-profit organization, sued President Trump, challenging EOs 14151 and 14173. CWIT claims that these EOs violate principles of separation of powers, the First and Fifth Amendments, and the Spending Clause of the U.S. Constitution. On April 14, 2025, the court preliminary enjoined enforcement of key provisions of the EOs, including a provision terminating CWIT’s Women in Apprenticeship and Nontraditional Occupations Act grant, which served as one of five federal sources of funding for the organization. On April 18, 2025, CWIT moved to modify the preliminary injunction to prevent termination of its four other sources of federal funding: (1) a Tradeswomen Building Infrastructure Initiative grant; (2) an Apprenticeship Building America grant; (3) a HUB Apprenticeship USA grant; and (4) an Intermediary Industry Contract. In its motion, CWIT asserted that the court erred by “declining to preliminarily enjoin termination of those grants” because “the [c]ourt’s logic enjoining termination of the [Women in Apprenticeship and Nontraditional Occupations Act] grant should also preclude termination of CWIT’s other grants.”
- Latest update: On May 7, 2025, the court denied the motion to modify the preliminary injunction, finding “CWIT has not shown a manifest error of law warranting modification of the preliminary injunction to encompass any of CWIT’s other sources of federal funding.” In its opinion, the court noted differences in how Congress funded the four other grants at issue and highlighted the different language used in the legislation creating these funding sources, which do not mandate the funding be used for gender equity-related purposes like the Women in Apprenticeship and Nontraditional Occupations Act grant.
- 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. 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.
- Latest update: On April 30, 2025, the parties filed a joint stipulation of dismissal. The Society of Military Orthopaedic Surgeons agreed to cancel the program, beginning with the fiscal year 2025 cohort, and removed reference to the program online. The Society also agreed that if the program were later reinstated, it would be equally open to all students. On May 1, 2025, the court dismissed the case with prejudice.
- Landscape Consultants of Texas, Inc. et al. v. City of Houston, Texas et al., No. 4:23-cv-03516 (S.D. Tex. 2023): White-owned landscaping companies challenged the City of Houston’s government contracting set-aside program for “minority business enterprises” under the Fourteenth Amendment and Section 1981. On November 29, 2024, plaintiffs and defendant Midtown Management District filed cross-motions for summary judgment. Midtown Management argued that the plaintiffs failed to show the unconstitutionality of the programs. The City of Houston filed its own motion for summary judgment on November 30, 2024, contending that the plaintiffs lack standing and that the programs satisfy the requirements of the Equal Protection Clause. On February 11, 2025, the court denied all motions for summary judgment in a single page order. On March 11, 2025, the court entered an order delaying setting a briefing schedule until after Houston votes on a new ordinance related to the program. On March 31, 2025, Houston notified the court that the City Council tabled consideration of the ordinance, which would adopt a relevant disparity study, for up to 30 days. On April 9, 2025, the plaintiffs responded that they are “prepared to move forward with trial” and that the delay deprived them of “their day in court.” The plaintiffs also contended that, even if Houston adopted the new ordinance, their constitutional and statutory claims would be unaffected.
- Latest update: On May 5, 2025, Houston submitted a notice to the court stating that the City Council discussed the ordinance at its April 30, 2025, meeting and unanimously voted to refer the ordinance back to the administration to permit business owners and stakeholders to comment. On May 8, Houston submitted a “final notice” to the court, stating that the City Council voted to, among other things, “amend[] various provisions of Chapter 15 of the Code of Ordinances, Houston Texas, relating to Minority, Women, and Small Business participation in City contracting; add[] Article XII establishing a Veteran-Owned Business Enterprise Program; [and] adopt[] City-Wide Goals for the City’s Minority, Women, and Small Business Enterprise Program.”
- Landscape Consultants of Texas, Inc. v. Harris County, Texas et al., No. 4:25-cv-00479 (S.D. Tex.): On February 5, 2025, Landscape Consultants of Texas, Inc. sued Harris County, Texas and the Harris County Commissioners Court (“HCCC”), challenging Harris County’s Minority and Woman-Owned Business Enterprise (“MWBE”) Program. The plaintiff, a non-MWBE landscaping company, claims it “has been at a significant disadvantage when bidding on landscaping contracts” with the County, because a Harris County ordinance requires that the government grant a certain percentage of contracts to MWBEs. The plaintiff alleges that the MWBE Program is racially discriminatory in violation of Section 1981 and the Fourteenth Amendment because it treats companies bidding for public contracts differently based on the race of the company’s owners. On April 14, 2025, the HCCC moved to dismiss the plaintiff’s claims against it, contending that the court “lacks a separate legal existence” from Harris County and cannot “sue or be sued.”
- Latest update: On May 5, 2025, the plaintiff voluntarily dismissed its claims against the HCCC without prejudice.
- National Association of Diversity Officers in Higher Educ., et al., v. Donald J. Trump, et al., No. 1:25-cv-00333-ABA (D. Md. 2025): On February 3, 2025, the National Association of Diversity Officers in Higher Education, the American Association of University Professors, the Restaurant Opportunities Centers United and the Mayor and City Council of Baltimore, Maryland brought suit against the Trump Administration challenging EOs 14151 and 14173. The plaintiffs contend that the executive orders exceed presidential authority, violate the separation of powers and the First Amendment, and are unconstitutionally vague. On February 13, the plaintiffs moved for a temporary restraining order and a preliminary injunction to prevent the Administration from enforcing the executive orders. On February 21, the Court granted in part the preliminary injunction. On March 14, the Fourth Circuit Court of Appeals stayed the injunction. On March 21, the plaintiffs filed a motion in the district court to vacate the injunction without prejudice, asserting that they “intend to seek additional relief based on developments that have occurred since the motion for preliminary injunction was filed on February 13, 2025.” The defendants opposed the motion on the ground that the district court lost jurisdiction when the defendants appealed the preliminary injunction order to the Fourth Circuit. The district court heard argument on the motion on April 10. On May 1, 2025, the district court denied the plaintiffs’ motion to vacate the preliminary injunction. Judge Abelson determined he had jurisdiction to rule on the motion under Federal Rule of Civil Procedure 59, which permits a party to move to amend a judgment. He then found that the plaintiffs failed to meet their burden to show that vacatur is appropriate. Specifically, he found that the plaintiffs failed to either demonstrate an intervening change in law, or to invoke an “error of law” or “manifest injustice.” Judge Abelson concluded that the “appropriate course” was to deny the motion and “allow the parties to brief the issues” on appeal.
- Latest update: On May 9, 2025, the plaintiffs filed a brief in the Fourth Circuit, asking the appellate court to either affirm the district court’s preliminary injunction order or, in the alternative, to vacate the preliminary injunction and remand for further proceedings. The plaintiffs contended that the district court did not abuse its discretion in granting a preliminary injunction, because it correctly determined that the EOs at issue violated the First and Fifth Amendments as they were impermissibly vague and would chill speech. The plaintiffs also argued that the district court correctly determined that they have standing to challenge the EOs. The plaintiffs argued in the alternative that the appellate court should vacate the preliminary injunction and remand the matter for further proceedings, at which time they would file an amended complaint with additional information that could potentially aid the court in its decision.
2. Employment discrimination and related claims:
- 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. 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.
- Latest update: On May 5, 2025, the defendants moved to enforce the settlement order and settlement terms. Because the motion contained “confidential health information,” it was filed under seal. Information about the substance of the settlement agreement is not publicly available. In a combined filing, also under seal, on May 9, 2025, the plaintiff filed his response to the defendants’ motion to enforce settlement and his own motion to enforce settlement on May 9, 2025.
- Dill v. International Business Machines, Corp., No. 1:24-cv-00852 (W.D. Mich. 2024): On August 20, 2024, America First Legal filed a discrimination suit against IBM on behalf of a former IBM employee, alleging violations of Title VII and Section 1981. The plaintiff claims that IBM placed him on a performance improvement plan as a “pretext to force him out of [IBM] due to [its] stated quotas related to sex and race.” The complaint cites to a leaked video in which IBM’s Chief Executive Officer and Board Chairman, Arvind Krishna, allegedly states that all executives must increase representation of underrepresented minorities on their teams by 1% each year to receive a “plus” on their bonuses. On March 26, 2025, the court denied a motion to dismiss, concluding that the plaintiff alleged sufficient facts to support a discrimination claim. On April 9, 2025, IBM answered the complaint, denying that the plaintiff consistently received high scores on the internal employee performance metric. IBM also denied having “executive compensation metrics that include a diversity modifier.” IBM raised 17 affirmative defenses, including (1) failure to state a claim, (2) failure to show the irreparable harm required for injunctive relief, (3) failure to show the plaintiff was treated less well or materially different from other similarly situated employees, and (4) failure to mitigate damages.
- Latest update: On April 30, 2025, IBM filed an amended answer to the complaint, denying the allegations of discrimination and raising 17 affirmative defenses including estoppel, unclean hands, waiver, and failure to mitigate damages.
3. Actions against Educational Institutions:
- Do No Harm et al v. David Geffen School of Medicine at UCLA et al, No. 2:25-cv-04131 (C.D. Cal. May 08, 2025): On May 8, 2025, Do No Harm, Students for Fair Admissions, and a named individual plaintiff brought a class action lawsuit against the Geffen School of Medicine at UCLA and various school officials, claiming the medical school unlawfully considers race and ethnicity in its admissions process in violation of the Equal Protection Clause, Title IV, Section 1981, and the California Unruh Civil Rights Act. The plaintiffs seek declaratory and injunctive relief, an order that the school admit the named plaintiff, disgorgement of federal funds received by the school while allegedly out of compliance with federal antidiscrimination law, and compensatory, punitive, statutory, and nominal damages. The plaintiffs seek to certify the following class: “All individuals who applied to Geffen within the statute of limitations, do not identify as black, paid an application-related fee, and were denied admissions.” They also seek to certify a subclass, defined as “All individuals who are able and ready to apply or reapply to Geffen if the Court order relief that fully stops the school from considering race in admissions and undoes the effect of the school’s prior discrimination, including by enjoining the school’s limitations on transfers and multiple applications.”
- Sullivan v. Howard University, No. 1:24-cv-01924 (D.D.C. 2024): On July 1, 2024, a male administrator at Howard University who was transferred to another department filed suit against the university, bringing claims of sex discrimination and retaliation in violation of Section 1981, and sex discrimination, retaliation, and a hostile work environment in violation of the D.C. Human Rights Act (DCHRA). On September 16, 2024, Howard University filed a partial motion to dismiss, arguing for the dismissal of both claims brought under Section 1981 because it does not protect against sex-based discrimination, and the hostile work environment claim because the alleged conduct was not severe, pervasive, or even linked to the plaintiff’s sex. The motion did not address the sex discrimination and retaliation claims brought under the DCHRA. On April 18, 2025, the court granted the university’s motion to dismiss the Section 1981 claims, but denied the motion as to the hostile work environment claim.
- Latest update: On May 2, 2025, Howard University filed an answer denying the remaining allegations in the complaint.
4. Board of Director or Stockholder Actions:
- Ardalan v. Wells Fargo, 3:22-cv-03811 (N.D. Cal. 2022): On June 28, 2022, a putative class of Wells Fargo stockholders brought a class action against the bank related to an internal policy requiring that half of the candidates interviewed for positions that paid more than $100,000 per year be from an underrepresented group. The plaintiffs alleged that the bank conducted sham job interviews to create the appearance of compliance with this policy and that this was part of a fraudulent scheme to suggest to shareholders and the market that Wells Fargo was dedicated to DEI principles. On June 4, 2024, the plaintiffs moved to certify a class of all people and entities who had purchased Wells Fargo stock during the period when the bank allegedly engaged in sham job interviews. The plaintiffs also sought to remove the stay on discovery in order to prove that there are issues of law and fact common to the putative class. On June 25, 2024, the defendants opposed class certification, arguing that plaintiffs had not proved that they affirmatively met the requirements due to the stay. On July 7, the court granted the parties’ motion to continue certain deadlines and set a telephonic case management conference for August 1, 2024.On August 23, 2024, Wells Fargo answered the amended complaint, admitting that the bank had “Diverse Slate Guidelines” to promote diversity but denying the allegations of unlawful conduct. On January 17, 2025, the plaintiffs moved to certify a class of Wells Fargo shareholders. On February 14, 2025, the defendants filed an opposition, arguing that the plaintiffs failed to demonstrate a methodology for measuring damages on a classwide basis and that the plaintiffs’ claims are subject to unique arguments and defenses.
- Latest update: On April 25, 2025, the court granted the plaintiffs’ motion for class certification. The court concluded that class claims and defenses would predominate over individual claims and defenses and that Wells Fargo’s damages arguments did not prevent class certification. The court ordered the parties to provide a joint status report regarding the outcome of mediation by June 10, 2025.
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
New York (+1 212-351-3850, mdenerstein@gibsondunn.com)
Zakiyyah T. Salim-Williams – Partner & Chief Diversity Officer
Washington, D.C. (+1 202-955-8503, zswilliams@gibsondunn.com)
Molly T. Senger – Partner, Labor & Employment Group
Washington, D.C. (+1 202-955-8571, msenger@gibsondunn.com)
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