Split 2nd Circuit Lets Challenge to Pfizer Diversity Program Proceed

A divided U.S. Court of Appeals for the Second Circuit on Friday reversed its earlier ruling and revived a group’s discrimination lawsuit challenging a Pfizer diversity fellowship.

The Second Circuit sent the case back to the district court to decide whether the nonprofit Do No Harm has sufficient evidence of standing, overturning the appellate court’s previous decision upholding the case’s dismissal because anonymous members who alleged injury refused to give their names to the trial court.

In an unsigned, per curiam, opinion, the court said Do No Harm’s inability to prove standing to obtain an order temporarily blocking the program didn’t doom the entire suit. The court said at the summary judgment stage in litigation that the group need only show that at least one member was “ready and able” to apply to the fellowship, if not for the diversity criteria.

“If on remand Pfizer moves to dismiss Do No Harm’s claims on the ground of standing, we leave it to the district court to address in the first instance the question whether Do No Harm’s pleadings are adequate,” the opinion stated.

Do No Harm, a group that opposes diversity initiatives in the medical field, alleges Pfizer’s Breakthrough Fellowship Program discriminates against white and Asian-American applicants. The group alleges the program violates Section 1981 of the 1866 Civil Rights Act and Title VI of the 1964 Civil Rights Act.

The Second Circuit said questions of mootness also have arisen. According to the Second Circuit’s opinion, Pfizer changed its selection criteria for the 2023 fellowship cycle to state that individuals are eligible to apply, regardless of whether they are from a minority group.

In a statement, Pfizer emphasized that the Second Circuit decision is procedural and that it will continue fighting the claims at the lower court.

“Pfizer is an equal opportunity employer and is proud of its commitment to diversity, equity, and inclusion,” Pfizer said. “The Second Circuit’s decision is procedural and does not reach the merits of the case at this early stage. The company believes that Do No Harm’s claims are without merit and looks forward to addressing them in the district court.”

Do No Harm Chair Stanley Goldfarb said in a statement that “we are pleased the Second Circuit has reversed course and correctly recognized our right to protect our members in the district court.”

“Protecting the anonymity of association members is crucial to prevent intimidation when brave individuals speak out against powerful organizations for their unconstitutional practices,” Goldfarb added. “While Pfizer tried to hide behind process and procedure, they now will have to answer for their discriminatory and illegal fellowship program. We look forward to continuing our fight to oust corrosive identity politics wherever it exists in medicine.”

Judges Dennis Jacobs and Beth Robinson joined in the per curiam opinion.

Judge Richard Wesley issued a dissent, saying the case should be dismissed because Do No Harm failed to demonstrate that the anonymous members have concrete plans to apply to the fellowship.

“[Member A and B’s] declarations were equally inadequate under the pleading standard: Members A and B offered only sparse, conclusory assertions that they were ready to apply to a program that would shape at least the next five years of their lives, and perhaps the better part of their early careers,” Wesley wrote.

The Second Circuit rendered its decision in Do No Harm v. Pfizer Inc., No. 23-15.