Recent litigation offers guidance for employers amid ongoing DEI backlash

After the U.S. Supreme Court’s decision in SFFA v. Harvard/ UNC, opponents of diversity, equity, and inclusion (DEI) have launched an all-out attack on corporate DEI programs. Recently, however, the courts have offered some guidance to beleaguered corporations trying to determine how to avoid litigation over their DEI programs.

Guidance on race-neutral admission policy

In late February, the Supreme Court denied a petition for review in Coalition for TJ v. Fairfax County, leaving in place a decision by the U.S. 4th Circuit Court of Appeals. The 4th Circuit had determined the high school’s use of geographic and socioeconomic factors and student experiences were allowable as a race-neutral admissions policy despite claims the policy adversely affected Asian Americans.

Justices Clarence Thomas and Samuel Alito strongly objected to the refusal, saying it established a “blueprint for evading” last term’s SFFA decision. This provides helpful guidance to employers on the type of race-neutral factors the Court would approve after
SFFA.

Individual harmed by diverse fellowship must be identified

The 2nd Circuit rejected claims against Pfizer’s diversity fellowship because the advocacy group that filed the claims wouldn’t identify by name one person who was harmed. In Do No Harm v. Pfizer, the appeals court said the identity of at least one of the students is necessary to determine whether the individuals “are not merely enabling the organization to lodge a hypothetical legal challenge.”