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.

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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.

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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.

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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.

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Life After Students for Fair Admissions: Dissecting Challenges to Employers’ Diversity Programs

The American First Legal Foundation and other organizations like it, have taken the position that all diversity, equity and inclusion programs are illegal since the Students for Fair Admissions Inc. decision from the U.S. Supreme Court. The groups have already filed actions against several companies for polices that include goals for the placement of people of color and women in leadership and leadership pipeline positions to match community demographics by a certain year; employee training and apprenticeship programs focused on underrepresented groups; and quantitative representation metrics for leadership incorporated into annual incentive compensation awards for senior leadership.

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Next Stage Considerations About the Supreme Court’s Affirmative Action Decision: How to Put the Warning Letter from the State Attorneys General in Context

As higher education institutions, state and local governments, private employers and federal contractors grapple with understanding the impacts of the U.S. Supreme Court’s decision in Students for Fair Admissions v. President & Fellows of Harvard College, No. 20-1199 (U.S. June 29, 2023), it is not surprising that elected officials — including 13 state attorneys general — have markedly different views about the philosophy and effects of affirmative action and other race-conscious policies. So, what should potentially affected organizations do in response to this legal uncertainty? We suggest taking a breath and bringing method to the madness.

For the full alert, visit the Faegre Drinker website.

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