A conservative legal group led by former Trump advisor Stephen Miller, America First Legal (AFL), has taken an unusual approach to target Sanofi’s diversity initiatives. AFL, known for its opposition to diversity and inclusion (DEI) programs, lodged complaints with the Office of Federal Contract Compliance Programs (OFCCP) and the U.S. Equal Employment Opportunity Commission (EEOC), accusing Sanofi of discriminatory hiring practices.
New Strategy Raises Doubts
Unlike AFL’s previous public criticisms of DEI programs, utilizing the OFCCP is a novel tactic for the group. The OFCCP, responsible for certifying affirmative action compliance among federal contractors, rarely investigates DEI policies. Legal experts suggest that the OFCCP is unlikely to address AFL’s challenges.
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Sanofi’s Alleged Violations
AFL, in its complaint against Sanofi Pasteur Inc., claimed the pharmaceutical company knowingly violated equal opportunity commitments by promoting diversity in hiring. AFL particularly criticized Sanofi’s “Diverse Slate Policy,” aiming for 50% of global senior leadership to be women and 37% to be people of color.
However, employment attorneys argue that the OFCCP may dismiss the complaint due to standing issues or refer it to the EEOC. AFL’s failure to identify a specific harmed individual and provide contact information may hinder the complaint’s validity.
Standing Issues and Legal Defense
According to Leigh Nason, co-chair of Ogletree, Deakins, Nash, Smoak & Stewart P.C.’s OFCCP compliance group, AFL’s complaint lacks particularized harm and violates OFCCP rules. AFL’s reliance on Executive Order 11246 as a basis for its standing may face challenges, as the OFCCP typically defers such complaints to the EEOC.
Reed Rubinstein, AFL’s senior counselor, maintains that the OFCCP has investigative powers, citing Executive Order 11246 and Supreme Court precedent. If the OFCCP chooses not to dismiss the complaint, forwarding it to the EEOC is the standard procedure.
OFCCP’s Historical Approach
The OFCCP typically focuses on issues of discrimination related to Title VII of the 1964 Civil Rights Act and defers race and gender-related complaints to the EEOC. While the OFCCP has a track record of addressing discrimination, especially against women and minorities, it hasn’t previously shown significant interest in evaluating DEI programs as potential discriminatory hiring practices.
Unprecedented Legal Strategy
Legal experts, including Mickey Silberman, founder of Silberman Law PC, highlight the uniqueness of AFL’s legal strategy. Silberman suggests that the Sanofi complaint may be the first of many attempts to challenge corporate America’s DEI programs in 2024, especially with a presidential election on the horizon.
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