Honeyfund is part of a broader reconsideration of the limitations of DEI-related activity in the wake of Fair Admissions, which held race-conscious admissions policies violated the Equal Protection Clause of the Fourteenth Amendment. As current legislation and litigation trends illustrate, DEI-related legal battles do not seem to be abating anytime soon.
To view the full alert, visit the Faegre Drinker website.
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.
The U.S. Supreme Court will decide in Murray v. UBS Securities, LLC whether a whistleblower must prove that an employer acted with “retaliatory intent” to be protected under the Sarbanes-Oxley Act. The Court’s decision will settle a split between the circuit courts, which will impact how employers defend against Sarbanes-Oxley Act retaliation claims.
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.
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.
On June 29, 2023, the U.S. Supreme Court decided Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, and Students for Fair Admissions, Inc. v. University of North Carolina et al., holding that race-conscious admissions programs used by Harvard College and the University of North Carolina are constitutionally impermissible. Both public colleges and universities, and private institutions receiving federal funds, are prohibited from considering race in admissions decisions. As a result of the decision, institutions may also need to evaluate other areas in which educational services or benefits potentially take race into account, including but not limited to the provision of scholarships or grants. There may also be significant implications for employers’ voluntary affirmative action and DEI programs, as well as potential implications for mandatory affirmative action for government contractors, as a result of the decision.