According to the article, the U.S. Justice Department is preparing to defend its use of diversity policies in choosing an independent monitor to oversee a plea agreement with Boeing Co., setting up a potential clash with a conservative judge that could delay a deal the company is eager to implement.

The politically tinged fight is playing out in federal court in Texas, where U.S. District Judge Reed O’Connor has homed in on standard language used by the Justice Department calling for diversity, equity and inclusion to be taken into consideration when choosing corporate monitors.

The diversity language used in the Boeing Co. criminal plea deal has been around since at least 2018 – during the Trump administration, according to a person familiar with the policy. Still, it has become a key holdup as O’Connor mulls whether to approve the plea deal.

So-called DEI policies – which companies use as part of an effort to create a fair workplace environment regardless of race, religion, gender or sexual orientation – have come under fire from conservatives who say the policies are actually discriminatory and disadvantage groups, particularly Whites.

Now, the court battle playing out in Texas will decide whether to allow Boeing Co. to plead guilty as part of a deal with the Justice Department to resolve a criminal investigation stemming from plane crashes that killed 346 people. One key component of the deal is a court-appointed monitor who would oversee a three-year probationary period during which the company has promised to enact safety and compliance changes.

Boeing Co. officials are eager to get the agreement approved so the company can put behind it the years of legal and regulatory problems. The detour into the political issue of DEI threatens to delay the badly needed agreement as the company is working to recover from the negative publicity over safety lapses and management turnover.

Justice Department and Boeing Co. officials are bracing for the possibility that O’Connor could use this case to challenge the use of diversity policies, which the Biden administration has embraced, and possibly usher in extended litigation that could delay the Boeing plea.

The issue first arose at an October 11 hearing in Fort Worth, where O’Connor worked through the routine details of the plea deal before taking a sharp detour to ask why the Justice Department included DEI considerations in choosing a monitor.

“And when you use the word ‘diversity’ in this context, that means what?” the judge asked the DOJ attorney.

Prosecutor Sean Tonolli acknowledged to the judge that he was not an expert on DEI and tried to explain that the policy “doesn’t mean in practice that we select less qualified” monitors, with the judge interjecting to try to dive deeper into the issue.

“Did the department used to exclude certain people on race, gender, and other things?” the judge asked.

Tonolli responded: “Not to my knowledge.”

O’Connor, appointed to the bench by President George W. Bush in 2007, has been a favorite of conservatives looking to challenge government policies from Democratic administrations in court.

In 2018, O’Connor issued a ruling striking down the Affordable Care Act’s individual coverage mandate, though his decision was later overturned by the U.S. Supreme Court. He has also temporarily blocked guidelines that allowed transgender students to use bathrooms that align with their gender identity in 2016 and sided with Texas in 2015 over an Obama administration measure extending family leave benefits to married same-sex couples.

 

Discussion Questions

1. What is “DEI?”

DEI is an acronym for “diversity, equity, and inclusion.” DEI is an organizational framework that seeks to promote the fair treatment and full participation of all people, particularly groups that have been historically underrepresented or subject to discrimination based on identity or disability. The three components of diversity, equity, and inclusion collectively represent three closely linked values that organizations seek to institutionalize through DEI initiatives.

“Diversity” refers to the presence of variety within the organizational workforce. It includes gender, ethnicity, sexual orientation, disability, age, culture, class, religion, and opinion.

“Equity” refers to concepts of fairness and justice. Equity usually includes a focus on societal disparities and allocating resources and decision-making authority to groups that have historically been disadvantaged, and taking into consideration a person’s unique circumstances, adjusting treatment accordingly so that the result is equal.

“Inclusion” refers to creating an organizational culture that creates an experience where all employees feel their voices will be heard, and a sense of belonging and integration.

 

2. What is the role of the court-appointed monitor in this case?

As indicated in the article, the court-appointed monitor in this case will oversee a three-year probationary period during which Boeing Co. has promised to enact safety and compliance changes related to the U.S. Justice Department’s plea deal with Boeing Co.

 

3. In your reasoned opinion, should an issue like DEI be a “sticking point” in the Boeing Co. plea agreement with the Justice Department to resolve a criminal investigation stemming from plane crashes that killed 346 people? Explain your response.

This is an opinion question, so student responses may vary. In your author’s opinion, the salient issue is whether the plea deal is reasonable considering the “totality of the circumstances.” There are “bigger fish to fry here” than the standard language used by the Justice Department calling for diversity, equity and inclusion to be taken into consideration when choosing corporate monitors. In your author’s opinion, such a requirement should not be the reason why the subject plea deal should be rejected by the judge. Judges are responsible for determining whether a plea agreement is in the best interests of the parties considering the contentious nature of the litigation, and ultimately, whether the plea agreement should be approved by the court.