Lynne Anne Anderson, James R. Strickland, Brian M. Hayes, Author at Laborsphere

Key U.S. District Court Ruling: Plaintiff’s Challenge to DEI Program Under Section 1981 Fails When She Lacked Standing Because She Did Not Apply

The America First Legal Foundation, which filed suit on behalf of the plaintiff, included this action on its website as one of its “featured actions” in the “DEI” space. This case is similar to many other challenges to DEI programs in that the lawsuit was being brought by a plaintiff who has not applied to the program at issue. All told, the court found that the plaintiff did not have standing to bring a claim derived from an allegedly discriminatory policy from which she had yet to be subjected. The plaintiff has appealed to the Fifth Circuit. As these cases continue to unfold — at the trial level and on appeal — organizations should be prepared to assert standing defenses when it becomes clear that a plaintiff did not take these affirmative steps.

To view the full alert, visit the Faegre Drinker website.

Key U.S. District Court Ruling: Plaintiff’s Challenge to DEI Program Under Section 1981 Fails When She Lacked Standing Because She Did Not Apply

Although the ruling has been appealed, plaintiffs bringing challenges to organizational DEI programs face standing concerns when they do not apply for or otherwise attempt to participate in those programs. As these cases continue to unfold, organizations should be prepared to assert standing defenses when it becomes clear that a plaintiff did not take these affirmative steps.

To view the full alert, visit the Faegre Drinker website.

A Tale of Two Cases – DEI Programs Under Scrutiny

Last month, two courts reached different conclusions about the legality of companies’ diversity equity and inclusion programs under Section 1981. The cases display different tactics and defenses and raise questions about how different courts will respond to these kinds of claims in the future.

Continue reading “A Tale of Two Cases – DEI Programs Under Scrutiny”

Defending Litigation Attacks on DEI Programs: A Status Update

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

Continue reading “Defending Litigation Attacks on DEI Programs: A Status Update”

Update on Post-SFFA Challenges to DEI Initiatives: Law Firm Fellowship Programs in the Crosshairs

Since the U.S. Supreme Court’s decision in Students for Fair Admissions vs. Harvard, the American Alliance for Equal Rights has now sued two large law firms for alleged violations of Section 1981 of the Civil Rights Act of 1866 over their fellowship programs offered to law students. Despite the Alliance’s complaints referencing gender, LGTBQ+ status and/or disability, the claims are limited to Section 1981 which addresses only racial discrimination in the fellowship programs.

Continue reading “Update on Post-SFFA Challenges to DEI Initiatives: Law Firm Fellowship Programs in the Crosshairs”

NLRB Releases Notice of Proposed Rulemaking to Increase Scope of Joint Employment Relationships

On September 6, 2022, a split National Labor Relations Board (NLRB or the Board) released its long-anticipated Notice of Proposed Rulemaking that would lessen the burden in proving that two companies jointly employ workers under the National Labor Relations Act (NLRA). This proposed standard, in effect, would increase the scope of joint employment relationships to include indirect and unexercised control over the essential terms and conditions of a job. In contrast, the prior standard — adopted in April 2020 by a Republican-majority Board — required that an employer have direct and immediate control over these essential terms and conditions. Moreover, the putative joint employer had to actually exercise that control. Before that, in 2015, a Democrat-majority Board issued a decision holding that a company need only hold indirect control over the terms and conditions of employment to be considered a joint employer.

Continue reading “NLRB Releases Notice of Proposed Rulemaking to Increase Scope of Joint Employment Relationships”