Judge Jennifer Rochon, nominated by President Biden to the Southern District of New York, threw out a lawsuit brought by a right-wing organization that tried to invalidate a fellowship program by Pfizer that uses affirmative action to promote employment diversity. The December 2022 ruling was in Do No Harm v. Pfizer Inc.
What’s the case about?
As a global biopharmaceutical company, Pfizer has sought to build a diverse work force “across all levels.” It has faced particular challenges in increasing diversity, especially 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 strict 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 right-wing 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 for the 2023 class “if Pfizer stops” discriminating, as they put it. DNH sought a preliminary injunction in the case, and Pfizer filed a motion to dismiss it.
What did Judge Rochon decide and why is it important?
Judge Rochon denied the motion for a preliminary injunction and dismissed the case. In a thorough opinion of more than 40 pages, she explained that neither DNH nor the students had shown that the fellowship program had or threatened to cause specific, concrete injury required to have standing to file suit. Even if DNH had followed the clear Supreme Court requirement that at least one member be identified by name, she pointed out, the record does “not establish that its members have suffered injury in fact.” Specifically, she went on, the members’ “sparse” declarations had not shown that they “meet the requirements of the Fellowship program”, applied to it, or have the required “concrete” intent to do so.
We know that affirmative action and efforts to promote diversity are under attack, in the Supreme Court and across the country. Decisions like Judge Rochon’s set important limits on challenges to such programs and preserve them to the extent possible. This ruling by Judge Rochon serves as an example of an important holding by a fair-minded federal judge nominated by President Biden. It is also a reminder of the significance of promptly confirming more such judges to our federal courts.