Dive Brief:
- A federal judge dismissed a lawsuit against BlackRock this week that alleged the asset manager had discriminated against a former white, heterosexual male employee through enforcing ESG policies and promoting diversity, equity and inclusion.
- The U.S. District Court of New Jersey tossed the case on Monday, which a judge said failed to establish a plausible case tying the plaintiff’s 2022 termination for refusing to get a COVID-19 vaccination to Blackrock’s ESG and DEI policies initiated around 2018.
- Company DEI programs have been a popular target for lawsuits since the U.S. Supreme Court struck down the use of race-conscious admissions for colleges in 2023. However, both BlackRock and the judge overseeing the case said the former employee failed to provide a factual basis for the allegation that his dismissal was tied to his race, gender or any other protected characteristic.
Dive Insight:
The lawsuit was filed by Kurt Dzibela, a former Blackrock international equity trader who alleged he was passed up for promotions and salary increases in service of the company’s DEI and ESG policies. Dzibela also alleged Blackrock wished to push out white male employees to increase representation.
The asset manager terminated Dzibela’s employment in 2022 after he refused to get vaccinated for COVID-19, in violation of a company policy established in 2021. Medical exemption applications were denied both by BlackRock and a third-party reviewer, according to court documents.
The former equity trader alleged the firm’s DEI and ESG policies “explicitly or implicitly” required management to discriminate against or terminate white, heterosexual males. He further alleged that his termination was in response to questioning management about such policies at a corporate strategy meeting in 2018 that resulted in an “awkward ‘mic drop’ moment of silence,” which the plaintiff interpreted as attendees agreeing with his point of contention, according to the dismissal.
Dzibela said it was not feasible for BlackRock to fire him in 2019 or 2020 due to the performance of the international equity desk. Following his termination, he filed the claim in April 2023, in the belief that his vaccine medical exemption denial was retaliation for his prior questioning of management.
BlackRock maintained his termination was solely based on his vaccine refusal and said in its motion to dismiss that the employee failed to “factually support” claims he was discriminated against based on any protected characteristic.
“Plaintiff has not stated plausible claims for race, color, gender or sexual orientation discrimination, particularly where he has pled that BlackRock’s motivation in enforcing its policy was ‘because of its desire to force its employees to be injected with a so-called COVID-19 vaccine,’” the motion to dismiss said.
“There is no allegation that the vaccination policy, on its face or application, was in any way tied to employees’ race, color, gender, sexual orientation or any other protected category,” the firm continued. “A judge concurred, ruling that the plaintiff does not allege that BlackRock’s vaccination policy was not implemented across the firm or that it was “otherwise selective in its implementation.”
“Moreover, plaintiff fails to allege that in refusing to accommodate his medical exemption, [BlackRock] accommodated similar medical exemptions for individuals who fit [the company’s] DEI profile,” the dismissal said.
“Plaintiff must ‘provide sufficient non-speculative and conclusory allegations that, accepted as true, state a claim’ for discrimination under [New Jersey’s anti-discrimination law],” the judge said. “Accordingly, plaintiff fails to allege sufficient facts to claim discriminatory discharge.”
As far as claims regarding his bonus and compensation, a judge ruled that the statute of limitations had passed on all compensation matters except his 2022 bonus. In this instance, the judge also found the claim “devoid of any facts” as it failed to show that someone of another race in the same position received a higher bonus, someone with the plaintiff’s same characteristics also received a reduced bonus or that his supervisor “espoused any racial animus.”
The lawsuit had also named BlackRock CEO Larry Fink as a defendant based on the firm “carrying out his [policy] directives.” However, the judge also dismissed the charges that alleged Fink was individually liable, finding “no substance to plaintiff’s allegations that Fink is individually liable as the ‘chief enforcer’ or ‘architect’ of the firm’s DEI and ESG policies. The dismissal said the plaintiff also failed to prove “any direct involvement by Fink in Plaintiff’s termination.”
