DE&I and Affirmative Action

O’Melveny’s DEI and Affirmative Action Task Force helps companies and educational institutions respond to the evolving legal landscape in the wake of the June 2023 Supreme Court rulings restricting affirmative action in colleges and universities, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fairs Admissions, Inc. v. University of North Carolina.

Corporate DEI programs have faced increased legal challenges from civil litigants and scrutiny from State Attorneys General following the affirmative action decisions. New lawsuits have been filed, new legal theories tested, and initial decisions issued that sketch out potential implications outside of the higher education context.

Our Task Force, established in March 2023 in anticipation of the potential scope of these rulings, offers practical guidance in this rapidly evolving area, leveraging a cross-disciplinary team with a wealth of experience in employment, education, corporate governance, and other areas.

Our services include reviewing and updating polices related to workforce goals, board of director goals, supplier diversity policies, training programs (e.g. mentoring programs or affinity groups), and a wide range of hiring, promotion and compensation practices. We also defend direct claims of discrimination under Title VII or Section 1981 as well as shareholder derivative claims alleging that officers/directors breached their fiduciary duties of loyalty/care by approving DEI policies.

ESG reports and other public materials have been a focal point for litigants challenging corporate diversity programs, and a focal point for companies analyzing their risk profile in this emerging DEI litigation landscape. The O’Melveny Task Force counsels clients through audits of their DEI policies, including supplier/contracting and employment diversity policies, and advises on forward-looking structural changes as well as related public disclosures.