Richard Rabin Quoted in Law360 on Possibility of Discrimination Suits over Board Diversity Laws

Law360’s “Employment Authority” has quoted Akin Gump labor and employment partner Richard Rabin in the article “Could Efforts To Diversify Boards Spark Discrimination Suits?” The article looks at the potential fallout from new laws requiring greater boardroom diversity.

As the article notes, California has enacted a law that requires public companies headquartered in the state to reach certain diversity benchmarks on their boards of directors by January 2023. Rabin said board diversity issues are at the forefront of companies’ minds, both in California and across the United States.

“I think this issue is truly front and center … and I think there are litigation risks and there are reputational risks. No one wants to be on the wrong side of either,” stated Rabin. “I’ve seen a lot of corporate soul-searching and attention to these issues unlike anything I’ve seen in a while as an employment lawyer.”

Whether new state mandates or pressure on businesses to diversify leadership will lead to discrimination cases is not clear, the article says, since such claims have yet to materialize, but it is possible they may eventually find their way into a courtroom if the circumstances are right.

One potential scenario that could lead to litigation, Rabin said, might occur if a board member is also a company employee, thereby possibly allowing someone to bring a valid bias claim.

“To the extent that [a] white male plaintiff is an employee [and] an executive board member, you can imagine claims brought in his role as an employee and alleging that another executive or someone else was given a board seat that he otherwise would have gotten,” said Rabin. “I have not seen that case materialize, but … if I was a plaintiffs lawyer, I would argue it’s a cognizable claim that could be brought.”