Challenge to race-based corporate fellowship program fails for lack of standing

Another potentially impactful lawsuit doomed over the lack of standing. If an organization brings a lawsuit to challenge what it believes is an unlawful policy, it must show it has standing to sue. The organization will say it has standing because its members have an interest in the case, but there are strict rules for that process. In this case, a conservative organization that claims Pfizer's fellowship program has racially-discriminatory cannot proceed with the case because we don't know who the aggrieved members are.

The case is Do No Harm v. Pfizer, Inc., issued on March 6. Pfizer, the pharmaceutical company, has a fellowship program that seeks to advance students and "early career colleagues of Black/American, Latino/Hispanic and Native American descent." The organization claims this program discriminates against white and Asian candidates. But the case does not get off the ground because the organization cannot prove standing. It fails to identify any of its injured members by name. 

Organizations can assert organizational standing to sue as the representative of its members. But at least one member of that organization must have standing to sue in their own right, i.e., that they suffered an actual injury and the lawsuit can redress that injury. In Summers v. Earth Island Institute, 555 U.S. 488 (2009), the Supreme Court has said that, in associational standing cases, the organization must identify members who suffered harm from the challenged policy. 

But the Supreme Court has not exactly stated that the organization must identify these members by name. The Second Circuit (Jacobs, Wesley and Robinson) has to therefore decide if you have to name names. The Court of Appeals determines that you do have to identify the aggrieved members, reasoning that such a requirement aligns with Summers. Under this interpretation, naming the members proves the case is not a hypothetical exercise; we want lawsuits to have real parties with real disputes. The First Circuit has already ruled as such, in a decision written by retired Supreme Court Justice David Souter, making the Second Circuit the second circuit to rule this way.