This past month has brought several challenges to the DEI landscape including a recent decision by the Society of Human Resources (SHRM) to remove the focus on equity from their diversity and inclusion initiatives. Read more about this decision and other DEI news, court cases, and developments in this month’s edition of the Pulse.
DEI In the News
Conservatives are blaming DEI for everything: a (semi) comprehensive list
Fast Company, July 25
How DEI became a corporate fall guy
Forbes, July 25
America First Legal files civil rights complaint against CrowdStrike over DEI practices
Washington Examiner, July 24
Merit, excellence and intelligence: An anti-DEI approach catches on
The Wall Street Journal, July 24
Alabama universities shutter DEI offices, open new programs, to comply with new state law
Associated Press, July 23
What people mean when they call Kamala Harris a ‘DEI candidate’
Fast Company, July 23
DEI is a trillion dollar blind spot. Sephora gets it – you should too
Forbes, July 22
‘DEI’ has become too divisive — it’s time for a rebrand
The Hill, July 21
Companies drop DEI targets from bonus plans on pressure from conservatives
Financial Times, July 21
DEI might be dying: John Deere and Microsoft make big changes
Inc., July 18
Microsoft becomes the latest corporation to ditch DEI team, labels it ‘no longer business critical’
Black Enterprise, July 18
Analysis: Law firms chosen for DEI framework rise above the rest
Bloomberg Law, July 18
John Deere ends support of ‘social or cultural awareness’ events, distances from inclusion efforts
Associated Press, July 17
Service says it’s appalled by DEI rhetoric against female agents after Trump rally shooting
NBC News, July 17
When DEI gets downgraded to I&D
Axios, July 15
Opinion: I’ve seen how DEI offices save Utahns’ lives, including my own
The Salt Lake Tribune, July 15
DEI: How to lead without going offside
Harvard Law School Forum on Corporate Governance, July 15
Nearly half of business master’s candidates want DEI content in their programs: poll
Poets & Quants, July 15
Lessons from Tractor Supply’s sudden reversal on its commitment to DEI
Forbes, July 13
Tractor Supply may have thought it solved a big problem. Now it has a few more.
Retail Dive, July 11
NRA ruling gives companies a tool to fight anti-DEI pressure
Bloomberg Law, July 11
Colleges risk talent loss with pushback on diversity initiatives
Bloomberg Law, July 11
Honeywell firing over DEI training lawful, seventh circuit says
Bloomberg Law, July 10
House Republican launches caucus to combat DEI in education
Colorado Politics, July 10
Small businesses know that DEI is good for business
Forbes, July 7
Opinion: Calling Kamala Harris a ‘DEI hire’ is what bigotry looks like
CNN, July 7
Opinion: How DEI becomes discrimination
The Wall Street Journal, July 5
ACLU prepares to fight Trump’s planned DEI purge
Axios, July 3
Northwestern Law School accused of bias against white men in hiring
The New York Times, July 2
Black farmers’ association calls for Tractor Supply CEO’s resignation after company cuts DEI efforts
Associated Press, July 2
Med schools face a new obstacle in the push to train more Black doctors
NPR, July 2
DEI In the Courts
Parents Defending Education v. Croton-Harmon Union Free School District et al.
On June 12, Parents Defending Education (PDE) filed a lawsuit against Croton-Harmon Union Free School District in the U.S. District Court for the Southern District of New York, alleging that district policies violate students’ First Amendment rights, citing the school’s teaching of gender identity and systemic racism and diversity, equity, and inclusion policies.
- On July 11, the court denied PDE’s request for a preliminary injunction and dismissed the case without prejudice for lack of subject matter jurisdiction pursuant to Do No Harm v. Pfizer Inc., 96 F.4th 106 (2d Cir. 2024), and Aguayo v. Richardson, 473 F.2d 1090 (2d Cir. 1973). The case will be reviewed by the U.S. Court of Appeals for the Second Circuit.
Do No Harm v. Pfizer, Inc.
On Sept. 15, 2022, the plaintiff association representing physicians, medical students, and policymakers sued Pfizer, alleging that the company’s Breakthrough Fellowship Program, which provided minority college seniors summer internships, two years of employment post-graduation, and a scholarship, violated Section 1981, Title VII, and New York law by excluding white and Asian applicants. The court dismissed the case in December 2022, stating that Do No Harm lacked standing because it didn’t identify specific members, instead only submitting declarations from anonymous members. On March 6, 2024, the Second Circuit affirmed the dismissal. Do No Harm appealed to the Second Circuit, which on March 6 affirmed the district court’s dismissal, holding that an organization must name at least one affected member to establish Article III standing under the “clear language” of Supreme Court precedent. Do No Harm petitioned for rehearing en banc.
- On July 1, Pfizer filed its opposition to Do No Harm’s petition for rehearing en banc, arguing that the case does not conflict with Supreme Court or Second Circuit authority, create a conflict among the circuits, or present “a question of exceptional importance.”
Beneker v. CBS Studios, Inc., et al.
On February 29, America First Legal (AFL) filed a lawsuit on behalf of Brian Beneker against CBS Studios for alleged violation of the Civil Rights Act of 1964. The plaintiff, Beneker, is a script coordinator and freelance scriptwriter who has been consistently writing episodes for a CBS television series. He alleged that he was “repeatedly denied a staff writer position” on the show despite positions being available. Beneker believes he was passed over for the position in favor of “nonwhite, LGBTQ, or female” candidates. On April 30, the plaintiff voluntarily dismissed one of the CBS entities, CBS Entertainment Group, LLC, as a defendant. On May 13, he filed an amended complaint against the remaining defendants, CBS Studios, Inc. and Paramount Global, re-alleging that they discriminated against him by denying him employment based on his race, sex, and sexual orientation in favor of less qualified applicants who were members of “more preferred groups.”
- On June 24, the defendants filed a second motion to dismiss following the plaintiff’s voluntary dismissal of Title VII and Section 1981 claims concerning only the white female/lesbian writers. The defendants reiterated their argument that the First Amendment completely bars the plaintiff’s remaining claims, asserting that CBS, as an “expressive enterprise,” has the right to choose the writers who best convey its message. Alternatively, the defendants contended that two of the Section 1981 claims are time-barred, arguing that courts should not consider discrete hiring decisions as “continuing violations” of Section 1981.
Do No Harm v. National Association of Emergency Medical Technicians
On Jan. 10, Do No Harm challenged the diversity scholarship program operated by the National Association of Emergency Medical Technicians (NAEMT). NAEMT awards up to four $1,250 scholarships annually to students of color hoping to become EMTs or paramedics. Do No Harm requested a temporary restraining order, preliminary injunction, and permanent injunction against the program. On Jan. 23 the court denied Do No Harm’s motion for a TRO, and NAEMT moved to dismiss Do No Harm’s amended complaint on March 18. On June 6, Do No Harm filed a notice of supplemental authority, highlighting the Eleventh Circuit’s decision in the Fearless Fund case. They argued this decision supports their claim of associational standing because their members are ready and able to apply for the scholarship.
- On June 25, NAEMT responded, stating that the Fearless Fund case does not apply because their scholarship never had a racial requirement, unlike the Fearless Fund program which explicitly excluded everyone except black females.
Weitzman v. Fred Hutchinson Cancer Center
On Jan. 16, a white Jewish female former employee filed a lawsuit against the medical center where she once worked. She claimed she was terminated for expressing discomfort with DEI content shared at work, objecting to DEI-related training, and voicing political opposition to DEI-aligned ideologies. Additionally, she alleged that her employer did not address the discrimination she faced from coworkers based on her religion and race. The plaintiff accused her employer of racial discrimination, creating a hostile work environment, and retaliation, violating the Washington Law Against Discrimination and Section 1981. She also claimed discrimination and retaliation based on political ideology under the Seattle Municipal Code, as well as intentional infliction of emotional distress and wrongful termination in violation of public policy under common law.
- On June 25, the court granted the parties’ joint stipulation for dismissal and the claim was dismissed with prejudice.
Californians for Equal Rights Foundation v. City of San Diego
On March 12, the Californians for Equal Rights Foundation sued the City of San Diego, claiming the BIPOC First-Time Homebuyer Program discriminates based on race, violating the Equal Protection Clause. The plaintiffs represent members willing to buy homes but ineligible for the program due to race.
- On June 18, the City of San Diego submitted a motion for judgment on the pleadings. The City contended that the complaint lacks any direct allegations against it, instead asserting a “fictitious [agency] relationship” with the other defendants, namely the Housing Authority of the City of San Diego and the San Diego Housing Commission. Furthermore, the City argued that even if the plaintiff’s agency claims were accepted as true, the lawsuit against the Housing Authority and the City would still fail because “a local government cannot be sued under § 1983 for an injury caused solely by its employees or agents.”
Gerber v. Ohio Northern University
On June 30, 2023, a former law professor sued Ohio Northern University, alleging wrongful termination following an internal investigation that determined that he bullied and harassed other faculty members. On Jan. 23, 2024, represented by AFL, the plaintiff filed an amended complaint, claiming his termination of employment was retaliation for opposing the university’s DEI principles and race-conscious hiring, which he deemed illegal. The plaintiff alleged breach of contract, violation of Ohio civil rights laws, and various torts including defamation and wrongful termination.
- On June 17, both parties filed motions for summary judgment. The defendants argued that the court should grant summary judgment because the plaintiff’s claims of retaliation for expressing his views on DEI policies are not backed by evidence, including because he “advanced through the ranks at ONU” while making prolific remarks against DEI and affirmative action since at least 2005. The plaintiff moved for summary judgment on his breach-of-contract and defamation claims.
Other DEI Developments
July 24: AFL filed a federal civil rights complaint with the U.S. Equal Employment Opportunity Commission (EEOC) against CrowdStrike Holdings, Inc. (CrowdStrike). The complaint alleges that the company is limiting, segregating, and classifying white and male employees in terms of training and promotions under its diversity, equity, and inclusion (DEI) policies. Additionally, AFL sent a letter to CrowdStrike’s board of directors discussing their fiduciary duties and potential liability related to the use of corporate assets and its impact on shareholder value.
July 10: The Equal Protection Project (EPP) filed complaints with the U.S. Department of Education’s Office for Civil Rights (OCR) against Ithaca College and Rochester Institute of Technology. The EPP claims that two of Ithaca College’s scholarship programs discriminate based on race and skin color, violating Title VI, as they are only available to students of color. Additionally, the EPP alleges that Rochester Institute of Technology’s “Women in STEM” scholarship, which is exclusively for female, female-identifying, or non-binary students, discriminates based on sex and gender identity, violating Title IX. The OCR is currently evaluating both complaints.
July 1: Utah’s “Equal Opportunity Initiatives” law took effect. The law, HB 261 prohibits mandatory training for employees that promote “prohibited discriminatory practices, submissions concerning hiring, compensation, and admissions, discriminatory practices related to an individual’s personal identity characteristics, “institutional speech” (institutions may not take or express a position or opinion on anti-racism, bias, critical race theory, implicit bias, intersectionality, prohibited discriminatory practices, or racial privilege, and institutional use of the words “diversity, equity, and inclusion” in any combination).
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