DEI Task Force Update (November 7, 2024)
Diversity | November 7, 2024
Gibson Dunn’s Workplace DEI Task Force aims to help our clients develop creative, practical, and lawful approaches to accomplish their DEI objectives following 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 October 29, the Sixth Circuit upheld summary judgment in favor of Berea College with respect to a white professor’s claims that the college discriminated against him on the basis of race and age in violation of Title VII and the ADEA. Porter v. Sergent et al., No. 23-5944 (6th Cir. 2024). The professor was fired after he emailed all students and faculty “a survey to measure ‘community perceptions and attitudes about academic freedom, freedom of speech, and hostile work environments under civil rights law,’” which contained “hypothetical scenarios based on Porter’s observations of [a colleague’s] Title IX investigation.” The professor claims “Berea fired him because he is an older, white male,” relying on an alleged comment made at a hiring committee meeting that the department did not need “any more old white guys.” The unanimous three-judge panel consisting of Judges Griffin, Kethledge, and Bush found that this comment did not influence the school’s termination decision. The panel also rejected the argument that younger female professors were not disciplined for refusing to attend meetings, while white male professors were disciplined for similar conduct, because the plaintiff was not disciplined for such conduct himself. (The court permitted the professor’s defamation claim to go to a jury.)
On October 30, a unanimous three-judge panel of the Fifth Circuit affirmed a decision by the U.S. District Court for the Southern District of Texas that a white professor who never applied for a position at Texas A&M University lacked standing to bring a reverse-discrimination case against the school. Lowery v. Texas A&M Univ, No. 23-20481 (5th Cir. 2023). The professor alleged that Texas A&M favored women and non-Asian minorities as professorial candidates, and that although he was “able and ready,” he did not apply for a position under a belief that it would be a “futile gesture.” In a per curiam opinion, Judges Jones, Willett, and Engelhardt found his failure to apply “fatal” to the case, noting that he had applied for a position at another university with similar practices. America First Legal represents the plaintiff.
On October 23, 2024, the Equal Protection Project (EPP) filed a complaint with the U.S. Department of Education’s Office for Civil Rights against Santa Clara University (SCU). EPP alleges that SCU’s Black Corporate Board Readiness Program (BCBR) violates Title VI of the Civil Rights Act. The BCBR is described as “designed to accelerate diverse representation in corporate governance,” and is allegedly available only to Black individuals.
On October 25, 2024, a coalition of investors, financial advisors, and fiduciaries led by Inspire Investing, an investment firm that promotes “biblically responsible investing,” released an open letter addressed to Fortune 1000 companies, responding to an October 15, 2024 open letter signed by 40 Democratic House Members that urged company leaders to continue to defend DEI. The investors’ response argues that corporate DEI efforts “divide[] employees from each other,” “punish[] dissenting views,” and have “little if any link [to] company performance metrics.” The letter claims that DEI programs pose “serious legal risk” following the Supreme Court’s decisions in Students for Fair Admission v. Harvard, and City of St. Louis v. Muldrow.
Media Coverage and Commentary:
Below is a selection of recent media coverage and commentary on these issues
- The New York Times, “A New Business on Wall Street: Defending Against D.E.I. Backlash” (October 24): Lauren Hirsch of The New York Times reports on the emerging business strategies of Wall Street law and communications firms to help companies prepare for attacks on their corporate DEI efforts. Hirsch highlights Robby Starbuck, who has targeted companies like Tractor Supply and John Deere, as a prominent figure in the opposition to corporate DEI programs in the wake of SFFA. Hirsch notes that companies are responding to the threat of anti-DEI attacks by “conducting vulnerability assessments, compiling research reports and writing plans for what to do if Starbuck comes calling.” And although companies are trying to mitigate the legal risk associated with DEI programs, Jason Schwartz, co-chair of Gibson Dunn’s Labor & Employment practice, says that after speaking with approximately 50 major companies about restructuring their diversity programs, few are willing to abandon these initiatives entirely.
- Bloomberg, “Companies Are Dropping the D or E From DEI to Avoid Criticism” (October 28): Bloomberg’s Jeff Green reports that companies are altering the terminology used to describe their DEI initiatives in response to ongoing backlash from conservative activists. According to a poll conducted by The Conference Board, just over 50% of 60 surveyed executives have modified diversity program descriptions, with an additional 20% considering similar adjustments. Green says that many companies are opting to drop “equity” from their program titles, as it is perceived as the most controversial term. Green highlights that it remains unclear whether these terminology changes reflect substantive modifications to DEI programs or merely an attempt to avoid controversy.
- The New York Times, “The Anti-D.E.I. Agitator That Big Companies Fear Most” (November 1): The New York Times’ David Segal profiles conservative anti-DEI activist Robby Starbuck and his role in the “counterreaction” to corporate DEI. Segal says that Starbuck views DEI as “wokeness run amok.” According to Segal, Starbuck “nearly always interprets corporate responses to his campaigns as complete surrender and often overstates his financial effect on corporate profits,” but Wall Street analysts disagree and believe that stocks “have risen and fallen for unrelated reasons.” Segal says that many companies targeted by Starbuck announced changes to their DEI programs “while restating a broad commitment to a diverse workplace.”
- Bloomberg, “Boeing Dismantles DEI Team as Pressure Builds on New CEO” (November 1): Jeff Green and Julie Johnson of Bloomberg report that Boeing has “dismantled its global diversity, equity and inclusion department,” as part of a broader restructuring of the company’s workforce. Green and Johnson say that staff from Boeing’s DEI office will be combined with another human resources team focused on talent and employee experience. Anti-DEI activist Robby Starbuck claimed credit for the move, saying that he had alerted Boeing that he was considering launching a campaign against their diversity programs before the company announced its changes. In a statement, Boeing said it “remains committed to recruiting and retaining top talent and creating an inclusive work environment.”
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:
- Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP) v. Northwestern University, No. 1:24-cv-05558 (N.D. Ill. 2024): On September 30, 2024, nonprofit advocacy group FASORP filed an amended complaint against Northwestern University, alleging that discriminatory practices at Northwestern Law School violate Title VI, Title IX, and Section 1981. The suit claims that three anonymous FASORP members were wronged by the consideration of race and sex in law school faculty hiring decisions, and that student editors of the Northwestern University Law Review give discriminatory preference to “women, racial minorities, homosexuals, and transgender people when selecting their members and editors” and when selecting articles to publish. The amended complaint also alleges plagiarism among candidates who were selected for law school faculty positions and in articles published by the Law Review. FASORP seeks to enjoin Northwestern from (1) considering race, sex, sexual orientation, or gender identity in the appointment, promotion, retention, or compensation of its law school faculty or the selection of articles, editors, and members of the Northwestern University Law Review, and (2) soliciting such identity information from law school faculty candidates or Law Review applicants. FASORP also asked the court to order Northwestern to establish a new policy for selecting law school faculty and law review articles, editors, and members, to appoint a court monitor to oversee all related decisions, and to enjoin the university from accepting any federal funds until it has ceased all alleged discriminatory practices.
- Latest update: On October 28, 2024, Northwestern moved to dismiss the first amended complaint for lack of standing and failure to state a claim. Northwestern argues that FASORP lacks standing because it has not sufficiently alleged its anonymous members’ qualifications or the steps the members took to attempt to join the Law School’s faculty. In addition, Northwestern argues that the complaint does not allege that FASORP members are qualified to submit, or did in fact submit, articles to the Law Review, or are or were ever Northwestern students. Even if FASORP has standing, Northwestern argues that its claims are outside the ambit of Title VI and Title IX, and its Section 1981-based claims are meritless, vague, and conclusory. A telephonic hearing on the motion to dismiss is set for March 11, 2025.
- Khatibi v. Hawkins, No. 23-cv-06195 (C.D. Cal. 2023), on appeal No. 24-3108 (9th Cir. 2024): On August 1, 2023, doctors Azadeh Khatibi and Marilyn M. Singelton, along with Do No Harm, a “membership group for medical professionals and others opposing diversity, equity and inclusion initiatives,” sued officials of the Medical Board of California, alleging that the Board unconstitutionally compelled their speech in violation of the First Amendment. Plaintiffs challenged a California law that, since January 1, 2022, has required all Continuing Medical Education (CME) courses to “contain curriculum that includes the understanding of implicit bias.” Khatibi and Singelton allege that, but for this law, they would never include implicit bias training in their medical curriculum because it is unrelated to their courses. On May 2, 2024, the Court granted the defendants’ motion to dismiss without leave to amend, adopting their argument that the requirements do not violate the First Amendment because teaching CME courses is government speech that is part of a state licensing scheme, and, much like teachers of a state-mandated public school curriculum, the doctor-educators are not associated with the contents of their course. On May 15, 2024, the plaintiffs appealed to the United States Court of Appeals for the Ninth Circuit. On August 23, 2024, the plaintiffs filed their opening brief.
- Latest update: On October 24, 2024, the defendants filed their answering brief, arguing that the “implicit bias requirement does not implicate [] First Amendment rights because the content of CME courses is government speech.” The defendants also argue that even if the content is private speech protected under the First Amendment, it is a valid condition applied to a discretionary government benefit.
- American Alliance for Equal Rights v. Southwest Airlines Co., No. 24-cv-01209 (N.D. Tex. 2024): On May 20, 2024, American Alliance for Equal Rights (AAER) filed a complaint against Southwest Airlines, alleging that the company’s ¡Latanzé! Travel Award Program, which awards free flights to students who “identify direct or parental ties to a specific country” of Hispanic origin, improperly 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 August 22, 2024, Southwest moved to dismiss, arguing that the case was moot because the company had signed a covenant with AAER that eliminated the challenged provisions from future program application cycles.
- Latest update: On October 17, 2024, AAER responded to Southwest’s motion to dismiss, arguing it has standing to seek nominal damages but conceding that Southwest’s covenant could moot AAER’s request for injunctive relief.
2. Employment discrimination and related claims:
- Bradley, et al. v. Gannett Co. Inc., 1:23-cv-01100 (E.D. Va. 2023): On August 18, 2023, white plaintiffs sued Gannett over its alleged “Reverse Race Discrimination Policy,” claiming Gannett’s expressed commitment to having its staff demographics reflect the communities it covers violates Section 1981. On August 21, 2024, the court granted Gannett’s motion to dismiss, holding that Gannett’s diversity policy alone did not establish disparate treatment, since it did not define any specific goals or quotas. The court also held that each named plaintiff had failed to state a claim for individual relief pursuant to Section 1981 and dismissed the class allegations because the class was not ascertainable and lacked commonality. On September 19, 2024, the plaintiffs filed a second amended complaint. On October 3, 2024, Gannett moved to dismiss the second amended complaint for failure to state a claim and moved to dismiss or strike the class allegations.
- Latest update: On October 17, 2024, the plaintiffs filed an opposition to Gannett’s motion to dismiss and strike class allegations. The plaintiffs argued that their second amended complaint clarified several of their arguments and sufficiently alleged a class that could meet the requirements for class certification. Furthermore, the plaintiffs argued that in its motion to dismiss, Gannett failed to acknowledge the Fourth Circuit’s recent decision in Duvall v. Novant Health, Inc., an “on point intervening decision” that held policies similar to Gannett’s were discriminatory. In its response, filed on October 23, 2024, Gannett reaffirms its position that the plaintiffs’ allegations were conclusory and failed to assert facts giving rise to any claims of discrimination. Additionally, Gannett argues that the plaintiffs’ reliance on Duvall was misplaced because it interpreted Title VII, not Section 1981. On October 29, Judge Rossie D. Alston, Jr. terminated the oral argument set for November 6 because he will decide the motion on the papers.
- Dill v. International Business Machines, Corp., No. 1:24-cv-00852 (W.D. Mich. 2024): On August 20, 2024, America First Legal filed a reverse 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 plaintiff seeks back pay, damages for emotional distress, and a declaratory judgment that IBM’s policies violate Title VII and Section 1981. 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 in order to receive a “plus” on their bonuses.
- Latest update: On October 23, 2024, IBM moved to dismiss the complaint for failure to state a claim for race and gender discrimination under Title VII and Section 1981. IBM contends that the plaintiff failed to make any factual allegations and merely relied on his personal beliefs and conjecture. Further, IBM argues that the plaintiff failed to plead sufficient “background circumstances to support the suspicion that the defendant is that unusual employer who discriminations against the majority” as required in the Sixth Circuit. (The continued viability of this test is before the Supreme Court in Ames v. Ohio Department of Youth Services (No. 23-1039).)
- De Piero v. Pennsylvania State University, No. 2:23-cv-02281-WB (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.
- Latest update: On October 21, 2024, the defendants moved for summary judgment on the plaintiff’s hostile work environment claims. The defendants argue the plaintiff cannot show that he experienced discrimination based on his race because he was not required to attend any of the meetings about which he complains. Defendants also argue that the plaintiff cannot show respondeat superior liability for Penn State, and that his claim for punitive damages fails as a matter of law.
- Fuzi v. Worthington Steel Co., No. 3:24-cv-01855-JRK (N.D. Ohio 2024): A former employee sued Worthington Steel for religious discrimination and retaliation in violation of Title VII, claiming he was fired for opposing Worthington’s DEI initiative that included a requirement that employees use each other’s preferred pronouns. The plaintiff claims that the policy violated his Christian beliefs, and that he was fired in retaliation for filing an EEOC charge relating to his complaints.
- Latest update: The docket does not yet reflect that the defendant has been served.
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, [email protected])
Katherine V.A. Smith – Partner & Co-Chair, Labor & Employment Group
Los Angeles (+1 213-229-7107, [email protected])
Mylan L. Denerstein – Partner & Co-Chair, Public Policy Group
New York (+1 212-351-3850, [email protected])
Zakiyyah T. Salim-Williams – Partner & Chief Diversity Officer
Washington, D.C. (+1 202-955-8503, [email protected])
Molly T. Senger – Partner, Labor & Employment Group
Washington, D.C. (+1 202-955-8571, [email protected])
Blaine H. Evanson – Partner, Appellate & Constitutional Law Group
Orange County (+1 949-451-3805, [email protected])