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 scrutiny from State Attorneys General and challenges from civil litigants following the affirmative action decisions. Our Task Force, established in March 2023 in anticipation of the potential scope of these rulings, offers practical guidance in this rapidly evolving area, including as to supplier/contracting diversity policies and employment diversity policies.  

Our services include reviewing and updating policies related to quantitative diversity goals (e.g. goals for senior leadership or supplier spend); training programs (e.g. mentoring programs or affinity groups); and hiring/promotion (e.g. diverse slate interview policies), among a range of DEI policies.  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 and advises on forward-looking changes to these policies as well as related public disclosures.