Five journalists who were formerly employed with Gannett Co., Inc., alleged that the media company’s diversity policies resulted in “reverse” discrimination. The proposed class action was filed in August 2023, less than two months after the U.S. Supreme Court held that affirmative action in college admissions was unlawful in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and University of North Carolina. The Gannett case was one of the first post-SFFA employment lawsuits, and now it is one of the first to be dismissed on the merits (as opposed to being dismissed for lack of standing). 

The lawsuit against Gannett asserted a violation of 42 U.S.C. Section 1981, which prohibits the use of race in making contracts. Because the case was decided on a motion to dismiss, the court was required to assume that the allegations in the lawsuit were true. It could dismiss the lawsuit only if the allegations – if true – were not sufficient to state a legal claim. At this very early stage, Gannett had not yet had the opportunity to present its side of the story.

The allegations focused primarily on Gannett’s 2020 Inclusion Report, which described an aspiration to achieve the following over a five-year period:

• Thirty percent increase in the representation of people of color in leadership positions; and
• A workforce with racial and gender representation reflective of the diversity of the nation.

The plaintiffs asserted that the Inclusion Report was a commitment “to hire and promote a certain percentage of individuals on the basis of their skin color and without regard to the relevant applicant pool.”

In addition, the plaintiffs alleged that company leadership was incentivized to increase workforce diversity through bonuses, promotions, and awards for achievement of diversity goals and that managers were told not to hire any more “straight White males.”

The plaintiffs alleged that the Inclusion Policy itself proved race discrimination, but federal judge Rossie D. Alston, Jr., of the Eastern District of Virginia disagreed. (Judge Alston is a Trump appointee.)

Judge Alston noted that the Inclusion Report did not include any of the following:

• Any reference to a quota or “caste system,” as alleged by the plaintiffs.
• Any specific mechanism for achieving the goals.
• Specific positions that would be targeted.
• Any demand for “reverse racism” or for prioritizing race over merit.

The court also observed that the Inclusion Report expressly referenced “fair treatment for all” and the commitment to ensure that everyone “has equal opportunities to thrive.” In addition, the report stated only vaguely that leadership would be held accountable for the “unidentified objectives” during an unspecified “annual goal setting process.”

Citing precedent for the proposition that the “mere existence” of a diversity policy does not establish a prima facie case of discrimination, Judge Alston held that the Inclusion Report did not prove disparate treatment. (See No. 1 on my list). Thus, the court examined the specific claims brought by the five plaintiffs.

The five plaintiffs were employed at various Gannett news outlets and each advanced different claims and theories of discrimination. Below is a discussion of each plaintiff’s allegations and the court’s rationale for dismissing each.

Steven Bradley worked as a content strategist and newsroom leader. Mr. Bradley alleged that he was explicitly told at the time of his employment termination that he was being terminated instead of an Asian employee because of his race. Mr. Bradley also asserted that he applied for another position, but that a Black woman was hired instead.

The court dismissed the discharge claim because Mr. Bradley signed a separation and release agreement at the time of his discharge, waiving the right to bring such a claim. The failure-to-hire claim was dismissed because Mr. Bradley did not allege that the selected candidate was unqualified and because his allegations of race discrimination were “vague and conclusory.”

Stephen Crane was employed as an editor and newsroom leader, and he contended that he was forced to rescind a job offer made to a white male applicant. Mr. Crane further alleged that the executive editor, a Black female, gave him a “biased” performance review based on his refusal to follow “race-based editorial directives.” He claimed that he was constructively discharged by these actions.

(Although the standard varies from one jurisdiction to another, a constructive discharge generally occurs where an employer makes working conditions so intolerable that a reasonable employee would feel forced to resign.)

Relying on cases holding that mere dissatisfaction with work assignments and unpleasant working conditions are not enough to establish constructive discharge, Judge Alston dismissed Mr. Crane’s constructive discharge claim. Significantly, Mr. Crane alleged only that he was forced to rescind an offer to a white male but offered no explanation for the directive – race-based or otherwise.

The claim regarding the alleged biased performance review was dismissed on the ground that Mr. Crane did not allege that he suffered any materially adverse employment action – or any adverse consequence at all.

Noah Hiles, a sports reporter, alleged that he was told to help find minorities to fill sports editorial positions and that he was paid less than a minority hired for a sports editor position.

Judge Alston dismissed Mr. Hiles’ disparate pay claim because he failed to allege that he was “similarly situated in all respects” to the person who got the job. Mr. Hiles alleged that the company offered a higher rate of pay to the other individual after two other candidates declined the position. In other words, he alleged a non-discriminatory justification for the pay differential, which was fatal to his pay claim.

Barbara Augsdorfer, a reporter, asserted that after that her executive editor emphasized the need to hire more Black newsroom workers, Ms. Augsdorfer’s assignment changed from covering education and non-profits to covering two local counties. Ms. Augsdorfer preferred covering education and non-profits, but she did not allege any adverse effect caused by the reassignment. She also alleged that less-experienced Black individuals were hired to cover education and non-profits, and when her employment was terminated, no one was hired to replace her.

Ms. Augsdorfer’s claim for discriminatory reassignment failed because she did not allege any facts showing that the change was an adverse employment action. Judge Alston did not cite Muldrow v. City of St. Louis, in which the U.S. Supreme Court held that a discriminatory transfer can violate Title VII if it causes some harm. However, Ms. Augsdorfer did not assert any type of negative consequence resulting from the transfer.

Judge Alston also dismissed Ms. Augsdorfer’s discharge claim because she did not allege that she was performing her job satisfactorily, yet she did allege that her manager said her performance was not “up to par” and that she had been placed on a performance improvement plan.

Logan Barry worked as a multimedia local government reporter. He alleged that, despite being told he would become a team lead, the lead position went to a Black woman.

Judge Alston dismissed the claim on the ground that Mr. Barry did not allege any facts to support his contention that he was more qualified than his counterpart.

Instead of dismissing the Amended Complaint with prejudice, which would have ended the lawsuit subject to the plaintiffs’ right to appeal, Judge Alston gave the plaintiffs until September 19 to file a new and improved complaint.

Conclusion

Judge Alston found a multitude of flaws with the allegations pled by the journalists, noting why they were insufficient to state a claim for race discrimination under Section 1981. The decision gives the plaintiffs the opportunity to correct those deficiencies, as well as a good road map for doing so.

However, the court made it abundantly clear that the Inclusion Report – from which inferences of discriminatory motive were drawn by the plaintiffs – does not by itself support a conclusion that Gannett made employment decisions on the basis of race. For their claims to pass muster, the plaintiffs will need to allege more specific facts connecting the employment actions against them to identifiable acts of discrimination.

So far, so good for employers with similar DEI policies.