The 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 US 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. O’Connor set a deadline of Friday for the administration to explain its use of so-called DEI policies in that program.
The diversity language used in the Boeing 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 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 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.
Boeing did not immediately respond to a request for comment.
Justice Department and Boeing officials are bracing for the possibility that O’Connor could use this case as a way 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 wasn’t 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 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.
