People For the American Way Foundation

Biden Judge Affirms Dismissal of Challenge to Employer’s Affirmative Action Diversity Plan

Biden Judge Affirms Dismissal of Challenge to Employer’s Affirmative Action Diversity Plan

Judge Beth Robinson, nominated by President Biden to the Second Circuit court of appeals, wrote a decision upholding a district court judgment that dismissed a challenge to a major employer’s program to increase racial and other diversity. All three judges agreed on the result. The lower court decision was written by Judge Jennifer Rochon, who was nominated by President Biden.  The March 2024 Second Circuit decision was in Do No Harm v Pfizer Inc.


What is the background of this case?                        

As a global biopharmaceutical company, Pfizer has sought to build a diverse work force “across all levels.” It has faced challenges in increasing diversity, particularly at senior levels, among Blacks, Latinos, and Native Americans. In 2021, it launched the “Breakthrough Fellowship Program” aimed at increasing “underrepresented groups in leadership positions.” Selected fellows begin work at Pfizer in the summer after their junior year at college and are placed on multi-year career paths to rise to manager positions or higher. Applicants must comply with academic and other requirements and are selected to help meet the goal of “increasing the pipeline” for underrepresented minorities, although the company noted that nothing “categorically bans” others from applying.

Do No Harm (DNH), a recently-formed conservative group that opposes what it calls discrimination in health care and related fields, filed a lawsuit challenging the fellowship program. They filed on behalf of two unnamed members, one who is white and one who is Asian-American, who claim in anonymous declarations that they are college students very interested in the program and are “able and ready” to apply  “if Pfizer stops” discriminating, as they put it.  DNH sought a preliminary injunction in the case, and Pfizer filed a motion to dismiss it.

Judge Jennifer Rochon, a Biden nominee, denied DNH’s motion and dismissed the case, as explained in a PFAW blog entry. DNH appealed to the Second Circuit.


How Did Judge Robinson and the Second Circuit Rule and Why Is It Important?

Judge Robinson wrote a decision upholding the lower court ruling that dismissed the case. All three judges on the panel agreed on the result, with Judge Richard Wesley writing a separate concurring opinion stating that DNH did not have standing because its anonymous members  “did not show an imminent injury from the Fellowship’s selection process .”

In her majority opinion, Judge Robinson explained that based on prior case law, a group like DNH that seeks standing based on alleged injuries to individual members “must name at least one individual member,” which DNH had not done. The naming requirement reinforces that groups like DNH have to show that someone is genuinely harmed by the challenged action, rather than just opposed as a policy matter. The group can seek to “protect the identities of its named members from public disclosure,” she went on, but must name at least one member to the court. The district court thus correctly denied the preliminary injunction and dismissed the case.

Especially after the Supreme Court’s divided decision striking down affirmative action in college admissions, efforts to promote diversity in employment and education are under attack across the country. Particularly in the Second Circuit, which includes New York, Connecticut, and Vermont, Judge Robinson’s opinion provides a precdent that sets important limits on challenges to such programs.  The decision is also a reminder of the importance of promptly confirming fair-minded nominees like Judge Robinson to our federal courts.