Elusive Litigants, Extraordinary Relief: How Unorthodox Litigation Tactics Endanger DEI Initiatives

• Jurisdiction: United States,Federal
• Law Firm: Jenner & Block
• Subject Matter: Corporate/Commercial Law, Employment and HR, Discrimination, Disability & Sexual Harassment, Diversity, Equity & Inclusion
• Author: Mr Ishan K. Bhabha, Lauren J. Hartz, Kathryn Wynbrandt and Leslie K. Bruce
• Published date: 30 January 2023

Threats to DEI initiatives are not new, but the types of litigants and lawsuits underlying these threats are evolving. As discussed in previous client alerts, the coordinated attack on DEI programs already extends well beyond university admissions policies, encompassing efforts to build diverse workforces, increase representation on corporate boards, and support women- and minority-owned businesses.¹ Recent challenges to such programs reveal two notable shifts in litigation strategies. First, suits are being brought by cause-based organizations on behalf of their members, not by the allegedly injured individuals themselves. What's more, they are being brought through causes of action that historically have not been applied in this context. These unorthodox tactics enable plaintiffs to target a wider array of initiatives, but they also render plaintiffs vulnerable to various legal defenses. Below we explore these recent trends and present key takeaways for defending DEI programs in this changing legal landscape.

The Litigants: Actually Injured or Simply Indignant?

In the past few years, attacks on DEI efforts increasingly have come not from individuals, but from newly formed membership organizations that seek to advance a particular cause. While their mission statements and constituencies may vary, all broadly profess to protect civil rights or civil liberties, and all file suit on behalf of their members. In their filings, however, many of these groups make only vague references to their members' identities and interests.² Some groups have even refused to name the members affected by the allegedly discriminatory policy.³ According to these groups, anonymity is necessary to protect their members, who may not wish to publicize their identities for fear of retaliation. Publicly challenging DEI initiatives, the argument goes, could damage individuals' reputations and prejudice evaluation of their applications for admission or employment. Disallowing anonymity could thereby deter injured individuals from pursuing litigation, one group cautioned.⁴

But such indefinite and generic allegations pose a conspicuous legal problem. Before a court can consider the merits of a plaintiff's claims, the plaintiff must establish that it has individually suffered harm as a result of the opposing party's conduct'a concept known as standing. A membership organization has standing to bring suit on behalf of its members'i.e., associational standing'only if it can show that at least one of its members would have standing to sue.⁵ This raises a serious problem: How can courts determine whether an organization's member has a personal stake in the litigation when courts do not even know who that member is?

Recognizing this problem, multiple courts have held that a membership organization lacks associational standing where it fails to identify at least one injured member by name.⁶ For example, in a case...