Healthcare Industry Emerges As The New Front For Anti-DEI Attacks

• Published date: 19 March 2024
• Subject Matter: Corporate/Commercial Law, Employment and HR, Food, Drugs, Healthcare, Life Sciences, Discrimination, Disability & Sexual Harassment, Diversity, Equity & Inclusion
• Law Firm: Jenner & Block
• Author: Mr Ishan K. Bhabha, Lauren J. Hartz, Erica Turret and Michelle A. Li

Anti-DEI litigants have zeroed in on the healthcare industry in their growing number of legal challenges to diversity, equity, and inclusion (DEI) initiatives. While some of these challenges began before the U.S. Supreme Court's decision in the Students for Fair Admissions cases,¹ these efforts, and the groups behind them, have gained momentum in the wake of that ruling.

One such group is Do No Harm, a nonprofit organization formed in April 2022. With a stated mission to "highlight and counteract divisive trends in medicine,"² the organization has targeted DEI efforts across the healthcare industry, including medical education, hiring, and policymaking. Edward Blum, who founded Students for Fair Admissions, reportedly serves on Do No Harm's board of directors.³ Like Students for Fair Admissions, Do No Harm attempts to bring cases on behalf of its members, and focuses on a single industry that receives significant federal funding.

Do No Harm has brought nearly a dozen lawsuits since its founding, including five filed after SFFA. While many of those cases rely on familiar causes of action for discrimination claims, the group also relies on the Affordable Care Act's nondiscrimination provision, using that healthcare-specific statute as a unique statutory hook to target healthcare companies and providers. This additional cause of action, not available to plaintiffs challenging DEI programs in other industries, may help to explain why healthcare has emerged as a top target.

A Unique Statutory Hook

Several of Do No Harm's cases have included a statutory basis for liability specific to the healthcare industry: Section 1557 of the Affordable Care Act (ACA).

Section 1557 is the primary non-discrimination provision of the ACA. It provides "an individual shall not . . . be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any health program or activity, any part of which is receiving federal financial assistance," on the basis of protected characteristics including race, ethnicity, language, disability, age, and sex.⁴ The U.S. Department of Health and Human Services defines "health program or activity" as "all of the operations of entities principally engaged in the business of providing healthcare that receive Federal financial assistance."⁵ The language in Section 1557 tracks closely with that of Title VI of the Civil Rights Act of 1964, which similarly provides that no person, on account of "race, color, or national origin," may be "excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance."⁶

Do No Harm is now attempting to weaponize Section 1557 to attack DEI efforts in healthcare. In Do No Harm v. Pfizer Inc., for example, Do No Harm brought a Section 1557 claim (in addition to numerous other federal, state, and local law claims) challenging Pfizer's Breakthrough Fellowship Program, which, at the time the lawsuit was filed, required that applicants "meet the program's goals of increasing the pipeline for Black/African American, Latino/Hispanic and Native Americans."⁷ According to Do No Harm, this requirement "categorically excludes white and Asian-American applicants from applying."⁸ The Section 1557 claim was based on the allegation that Pfizer, "a company principally engaged in healthcare," receives federal financial...