Our Letter to McDonald’s
Via email, FedEx, and Strive.com
Chief Executive Officer
Enrique Hernandez, Jr.
Chairman of the Board
July 18, 2023
RE: Strive Asset Management Engagement with McDonald’s
Dear Messrs. Kempczinski & Hernandez,
We write on behalf of Strive Asset Management’s clients who are shareholders of McDonald’s.
There is little doubt that McDonald’s is an iconic American brand with a proud history of serving quick, quality food to hungry Americans and global citizens alike. However, we at Strive are concerned that McDonald’s is jeopardizing the company’s position by pursuing value-destroying and potentially illegal diversity policies, particularly in the face of the U.S. Supreme Court’s recent decision in Students for Fair Admissions v. Harvard.
In particular, we are concerned by:
- McDonald’s decision to set and adhere to race- and gender-based targets for its board of directors, management, and employee ranks,
- McDonald’s race-based targets for its suppliers and vendors,
- McDonald’s mandate that its suppliers themselves adopt race- and gender-based targets, and
- McDonald’s potential breaches of fiduciary duty as a result of its embrace of stakeholder capitalism more broadly
We believe these policies jeopardize McDonald’s value by elevating divisive identity politics above its commitment to excellence, while also creating serious legal and commercial risks for the company. Each of these policies, and the risks attendant to them, are discussed in turn below.
Policy 1: Race and Gender Targets for Directors and Employees
Over the past several years, McDonald’s has adopted multiple race and gender based quotas, or “representation goals,” for its board of directors and employees. For example:
- In 2019, McDonald’s launched its “Push for Gender Balance” campaign in which it committed to “aim for the representation of women at every level in the business to be equal to – or better than – the representation of women in the external workforce” by altering its hiring and promotion policies.1
- In February 2021, McDonald’s announced its “Pairing Allyship with Accountability” program, in which it “set aggressive targets to increase representation of women and historically underrepresented groups in leadership.”2 Specifically, McDonald’s committed to “increas[ing the] representation of historically underrepresented groups in leadership roles (Senior Director and above) located in the U.S. to 35%” by 2025 and increasing the percentage of women in leadership roles globally to 45% over the same time frame.3
- In December 2021, McDonald’s published a progress report on its efforts to increase the percentage of racial minorities and women at every level at the company, from the Board of Directors to leadership to restaurant managers and staff.4
- In its most recent Diversity and Inclusion report, McDonald’s reiterated its commitment to the above policies, and reported that as a result of its policy changes, it had increased the percentage of women in senior leadership from 37% to 41% and the percentage of racial minorities to 30%.5 Stated differently, McDonald’s explained that it had successfully driven down the percentage of men in its leadership ranks to 59% and the percentage of white leaders to 70%.
The legal risks of these policies could not be clearer. Just three weeks ago, the Supreme Court issued its opinion in Students for Fair Admissions v. Harvard, No. 20-1199, in which it held that all racial discrimination—including affirmative action—is illegal under both the Fourteenth Amendment’s Equal Protection Clause and the Civil Rights Act. As the Court explained, “ending racial discrimination means ending all of it.”6 For that reason, “it is never permissible to say ‘yes’ to one person but to say ‘no’ to another person even in part because of the color of his skin.”7 Nor is it permissible to even “desire some specified percentage of a particular group merely because of its race or ethnic origin.”8
Yet McDonald’s policies appear to do just that. By instituting representation goals, and withholding up to 15% of executive’s annual bonuses unless such representation goals are met,9 McDonald’s is engaging in precisely the kind of conduct the Supreme Court has declared illegal.
While the Supreme Court’s decision focused on ending the use of affirmative action in the higher education context, the Civil Rights Act applies to both universities that receive federal funds and private employers such as McDonald’s. As Justice Gorsuch explained in his Fair Admissions concurrence “both Title VI [of the Civil Rights Act, which applies to universities] and Title VII [which applies to private employers] codify a categorical rule of ‘individual equality, without regard to race.’”10 The two clauses use “materially identical language” and operate the same way.11 Thus, the Supreme Court’s holding that affirmative action is illegal in the university setting applies with equal force to private employers.
To be clear, such clarification wasn’t really needed. Unlike in the educational context, where some use of race-conscious measures used to be permissible, race-conscious policies have already been long outlawed in the workplace context, at least unless the company has a strong basis in evidence for believing that its existing workforce composition is the result of its own unlawful past discrimination12—a position we doubt very much that McDonald’s board wishes to take. But lest any doubt remain, Fair Admissions erases any doubt that race-conscious hiring, promotion, training programs, retention strategies, and other benefits are patently illegal.
As EEOC commissioner Andrea R. Lucas explained, corporate diversity programs “pose both legal and practical risks for companies. Those risks existed before the Supreme Court’s decision [in Fair Admissions]. Now they may be even higher.”13
Although companies may once have believed that they would not be sued for their discriminatory
practices so long as they couched them in politically correct terms—such as purporting to help underrepresented minority groups or achieve racial diversity—it’s now clear that is no longer the case. In recent years, major companies including AT&T,14 Starbucks,15 American Express16 and Novant Health17 have all faced litigation for diversity policies that provide preferential treatment for certain underrepresented employees on the basis of race. Courts have generally allowed these lawsuits to proceed, with juries sometimes awarding tens of millions of dollars to plaintiffs harmed by these policies.18
Private lawsuits are not the only risk. In 2021, for instance, the Department of Labor launched a civil rights investigation into Microsoft after it pledged to double the number of Black employees in senior leadership roles.19 And in recent weeks, the EEOC has received complaints against candymaker Mars for pledging to increase racial diversity in management from 16% to 30%,20 Nordstrom for promising to increase Black and Latinx representation by 50%,21 and BlackRock for an internship program exclusively for underrepresented minority students.22 And just last week, thirteen state attorneys general sent cease and desist letters to the Fortune 100, explaining that “the Supreme Court’s recent decision should place every employer and contractor on notice of the illegality of racial quotas and race-based preferences in employment and contracting practices.”23 The threat of such investigations and lawsuits is thus not just theoretically possible, but increasingly real.
Indeed, McDonald’s itself is already facing at least one EEOC complaint as a result of its race-centric employment practices.24 But its potential liability does not end there. To the contrary, if McDonald’s does not immediately rescind its policies, it may soon face investigations from state and federal regulators, subpoenas from state lawmakers, lawsuits from state attorneys general, and class action lawsuits from employees harmed by such policies under both state and federal law. And given that McDonald’s has been warned of the illegal nature of its diversity and inclusion policies multiple times,25 it is likely the company would face punitive damages for intentional discrimination going forward.26
Notably, state laws are often much broader than their federal Civil Rights Act counterpart, creating even greater cause for concern. In Ohio, for instance, the law prohibits not just race-based hiring and promotions, but:
- publishing “any notice or advertisement relating to employment or membership listing a preference . . . based upon race, color, religion [or] sex,”27
- “[a]nnounc[ing] or follow[ing] a policy of denying or limiting, through a quota system or otherwise, employment or membership opportunities of any group because of the race, color, religion [or] sex,”28 and
- merely “attempting to elicit any information concerning the race, color, religion, [or] sex” of any job applicant, or “mak[ing] or keep[ing] a record” of any applicant’s race or sex. 29
McDonald’s policies appear to violate all three provisions. It is difficult to describe McDonald’s DEI-related press releases30 as anything other than notices listing a preference for certain races and genders while simultaneously limiting employment opportunities to others on those bases. And it is even more difficult to imagine that McDonald’s is not eliciting or keeping track of its employees’ and potential employees’ race and gender when it is reporting those figures to the public and tying its executives’ paychecks to meeting specific numeric goals.
Further, these litigation risks are not outweighed by any tangible benefits to the company or its bottom line. To the contrary, study after study has found that hiring and promoting based on race and sex, rather than merit, does not improve financial performance. As Professors Jeremiah Green and John Hand at Texas A&M and the University of North Carolina’s business school, respectively, have explained, there is “no statistically significant difference between the likelihood of financial outperformance” of S&P 500 companies ranked in the top or bottom quintiles on diversity metrics.31 Similarly, Wharton Professor Katherine Klein’s meta-analysis concludes, “Spoiler alert: Rigorous, peer-reviewed studies suggest that companies do not perform better when they have women on the board.”32 And Harvard Law professor Jesse Fried has likewise explained, “rigorous scholarship—much of it by leading female economists—suggests that increasing board diversity can actually lead to lower share prices. Adoption of [diversity mandates] would thus generate substantial risks for investors.”33 Thus, while McDonald’s must and should comply with the law because it is legally required to do so, even if it had the legal flexibility to do otherwise, its decision to enact race- and gender-based employment goals cannot be justified in financial terms.
Policy 2: Supplier Set Asides For Minority Owned Businesses
Equally troubling is McDonald’s decision to set aside a portion of its supplier budgets for minority owned businesses. McDonald’s most recent Diversity and Inclusion Report, for instance, indicates that “[i]n 2021, we set a goal to increase U.S. Systemwide spend with diverse-owned suppliers to 25% or $4 billion by the end of 2025” and proudly announced that it had already reached that goal.34 It also announced that it was “raising our diverse owned media investment ambition from 10% to 15% by the end of 2024.”35
McDonald’s pursuit of these minority-preference programs exposes the company to significant legal risk. The Civil Rights Act of 1866, now codified at 42 U.S.C. § 1981, prohibits anyone from discriminating in private contracting on the basis of race. As the Supreme Court has explained, section 1981 is a “sweeping” law designed to “break down all discrimination between black men and white men” when it comes to “basic civil rights” including the right to contract.36
Nor is it limited to protecting the rights of racial minorities alone. As Justice Marshall explained: “[T]he 1866 statute, designed to protect the ‘same right . . . to make and enforce contracts’ of ‘citizens of every race and color’ was not understood or intended to be reduced . . . to the protection solely of nonwhites. Rather the Act was meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race.”37 Accordingly, setting race-based goals and criteria for supplier contracts is almost certainly illegal.
At a minimum, McDonald’s supplier policies expose it to substantial, and unnecessary, litigation risk. Recent litigation involving Comcast serves as a cautionary tale. Comcast, like McDonald’s, instituted a series of programs designed to increase supplier diversity, including a “Comcast Rise” program through which it partnered with small, minority-owned companies to promote and elevate their businesses.38 Four white male business owners sued Comcast, alleging that the program was illegal under the 1866 Civil Rights Act.39
While the case settled before a decision on the merits, a few points are notable. First, although the financial terms of the settlement are confidential, Comcast did end up scrapping its “Comcast Rise” program as a result of the lawsuit.40 Second, the case presented significant legal costs.
Comcast hired Paul Clement, a former Solicitor General of the United States, to represent the company in the suit, and likely paid him over $1800 per hour41 for months while the lawsuit was pending. Thus, even in a best-case scenario—where a lawsuit is settled even before the motion to dismiss is ruled upon—litigations like the Comcast case can cost a company hundreds of thousands of dollars. Through trial, that number is in the millions for lawyer fees alone. Add in the very real possibility of an unfavorable jury verdict, and the costs may be in the tens of millions or more.
Further, there is no business justification for using racial preferences in awarding vendor contracts. The leading academic study on the topic, conducted by researchers at the University of Texas, did not find any relationship between supplier diversity efforts and long-term financial performance.42 This is not surprising. Changing or adding new vendors is often a resource-intensive, time-consuming process.43 And an unknown vendor is always going to introduce more risk than continuing with vendors who have already been vetted and proven themselves capable of meeting the company’s needs. Further, selecting suppliers based on non-business-related factors—such as how many minorities they employ, or whether the owner was willing to put 51% of the business in his wife’s name, or whether they are willing to sign a diversity pledge—necessarily leads to lower quality vendors than a process that selects vendors based on merit. As such, McDonald’s supplier diversity policy introduces not only legal risks, but business risk as well.
Policy 3: Pressuring Suppliers to Discriminate
Strive is further concerned about McDonald’s policy of pressuring suppliers to discriminate in their own hiring, retention, promotion and firing policies. In July 2021, McDonald’s announced its “Extending a Hand to Our Suppliers” initiative in which it “asked every supplier to take our Mutual Commitment to Diversity, Equity and Inclusion pledge.”44 Through that pledge, suppliers “will commit to implementing a DEI strategy, increasing overall representation, . . . and creating a process for accountability.”45
Such policies may be a direct violation of the Civil Rights Act of 1866 for many of the reasons discussed above. But importantly, they may also give rise to an independent claim that McDonald’s is aiding and abetting discrimination at its supplier companies, by pressuring those suppliers to engage in unlawful discrimination.46
Such a theory would be on strong legal footing. One court, for example, held a company liable for employment discrimination because it asked its suppliers to conduct employee background checks to make sure no felons worked on their contracts, which is illegal under New York law.47 The supplier agreed to the contract, found out two employees were felons and fired them. The terminated employees then sued not only their employer, but the company that contracted with their employer as well. The Second Circuit held that even third-party contractors could be held liable for “aiding and abetting” discrimination and allowed the case to proceed.
In McDonald’s case, such a claim would be devastating. McDonald’s has used its influence to pressure several large companies, including Tyson Foods, Cargill and Accenture, to sign McDonald’s diversity pledge.48 Accordingly, under an aiding and abetting theory, McDonald’s could be held liable for discrimination not only by its own employees, suppliers and would-be suppliers, but by employees of these third-party companies as well.
As stewards of our clients, McDonald’s shareholders, it is difficult to understand how asking third-party vendors to engage in non-merit-based employment practices is intended to increase McDonald’s long-term financial returns. If you believe otherwise, we’d be pleased to review any cost-benefit analysis you have performed.
Policy 4: Rejecting Shareholder Primacy
At the broadest level, Strive is concerned about McDonald’s rejection of shareholder primacy. As a Delaware corporation, McDonald’s board of directors “must make stockholder welfare their sole end.”49 Accordingly, “other interests may be taken into consideration only as a means of promoting stockholder welfare.”50
Despite this legal requirement, McDonald’s has turned away from shareholder primacy and towards stakeholder capitalism, which is a theory that companies exist not just to serve shareholders, but employees, suppliers, the environment, and the communities in which they operate. This shift is evident not just from the DEI reports and ESG press releases, but from your own commitment to the Business Roundtable,51 which states that the purpose of a corporation is to “deliver value to our customers,” “invest in our employees,” “deal fairly and ethically with our suppliers,” and “support the communities in which we work.”52 Shareholders, under this model, come last.
We understand that you are in a challenging position when McDonald’s top “shareholders” ask you to adopt measures that you believe do not serve their best interests. The fundamental problem is that your purported “shareholders” are not the actual capital owners of your company.
The three largest asset management firms in the world—BlackRock, Vanguard and State Street—are McDonald’s largest three shareholders.53 And the Big Three have been vocal proponents of stakeholder capitalism, often imposing those views directly on McDonald’s. BlackRock has no doubt been the loudest of the group, imploring the companies in which it invests to engage in “conscientious capitalism”54 and meet BlackRock’s own preset quotas for board diversity.55 But it hasn’t acted alone. Notably, funds from both State Street and Vanguard voted in favor of forcing McDonald’s to conduct a racial equity audit in 2022—an audit that McDonald’s is currently undertaking. But the Big Three are not the actual owners of McDonald’s, their clients are: the everyday citizens who invest in BlackRock, State Street and Vanguard funds.
You owe a fiduciary duty to the actual owners of McDonald’s, not to the institutions who claim to represent them. There is strong reason to believe that the actual owners do not support McDonald’s aggressive adoption of race- and gender-based employment and supplier preferences. A majority of Americans, for instance, say race should not be a factor in college admissions.56 And a different poll showed 74% of Americans believe that employment decisions should be based on qualifications alone.57 Given these findings, it is unlikely that most of McDonald’s shareholders support such policies—and even less likely that a majority of them would be willing to sacrifice their investment returns to promote them.
Speaking on behalf of the many actual owners of McDonald’s represented by the signatory of this letter, we respectfully urge the company to:
- Rescind its current diversity, equity and inclusion policies in full, including all representation goals and executive compensation packages tied to such goals,
- Make clear to all employees that any and all discrimination will lead to immediate disciplinary action up to and including termination, including any discrimination intended to advance diversity targets or other DEI goals;
- Notify existing and prospective suppliers that McDonald’s is retracting its “Mutual Commitment to Diversity, Equity and Inclusion” pledge and instead advocates for its suppliers to employ race- and gender-neutral employment and subcontracting policies, and
- Commit to making all director, employment and supplier decisions based on merit, without regard to race or sex.
We look forward to engaging with your management and board of directors on these issues.
With best regards,
Head of Corporate Governance, Strive Asset Management
1 McDonald’s. “McDonald’s Launches Push for Gender Balance and Diversity,” Mar. 8, 2019, https://corporate.mcdonalds.com/corpmcd/our-stories/article/gender_balance_push.html.
2 McDonald’s. “A Look at How Our Global DEI Strategy Has Come to Life in 2021,” Dec. 8, 2021, https://corporate.mcdonalds.com/corpmcd/our-stories/article/DEI-system-update.html.
3 McDonald’s. “Allyship through Accountability,” Feb. 18, 2021, https://corporate.mcdonalds.com/corpmcd/our-stories/article/global-dei-ambition.html.
4 McDonald’s. “McDonald’s 2021 Diversity Snapshot,” Dec. 2021, https://corporate.mcdonalds.com/content/dam/sites/corp/nfl/pdf/McDs_DEI-Snapshot-2021.pdf.
5 McDonald’s. “McDonald’s 2021-2022 Global Diversity, Equity and Inclusion Report,” Dhttps://corporate.mcdonalds.com/content/dam/sites/corp/nfl/pdf/McDonalds_Corporation_Diversity_Equity_and_Inclusion-2021-2022.pdf.
6 Students for Fair Admissions v. Harvard, No. 20-1199 (June 30, 2023), slip op. at 15.
7 Id. at 25 (Gorsuch, J., concurring) (internal quotation marks and ellipses omitted)).
8 Id. at 20 (majority opinion) (internal quotation mark omitted).
9 Beckett, Emma Liem. “McDonald’s Links 15% of Executive Bonuses to Hiring Women, Diverse Employees.” Restaurant Dive, February 18, 2021. https://www.restaurantdive.com/news/mcdonalds-links-15-of-executive-bonuses-to-hiring-women-diverse-employee/595294/.
10 Id. at 4 (Gorsuch, J., concurring) (internal quotation marks and brackets omitted).
11 Id. at 16-17 (Gorsuch, J., concurring).
12 See Ricci v. DeStefano, 557 U.S. 557 (2009).
13 Lucas, Andrea. “With Supreme Court Affirmative Action Ruling, It’s Time for Companies to Take a Hard Look at Their Corporate Diversity Programs.” Reuters, June 29, 2023. https://www.reuters.com/legal/legalindustry/with-supreme-court-affirmative-action-ruling-its-time-companies-take-hard-look-2023-06-29/.
14 Brooks, Khristopher J. “‘White Guy’ Case against AT&T Can Move Forward, Judge Says.” CBS News, June 9, 2022. https://www.cbsnews.com/news/joseph-dibenedetto-att-race-gender-age-lawsuit-georgia/.
15 Morenoff, Dan. “Starbucks’ Shareholder Sues to Stop Its Civil Rights Violations from Wasting Corporate Assets.” American Civil Rights Project, August 31, 2022. https://www.americancivilrightsproject.org/blog/filings/starbucks-shareholder-sues-to-stop-its-civil-rights-violations-from-wasting-corporate-assets/.
16 Halon, Yael. “Amex Pushed White Employees out, Promoted Black Colleagues to Meet Racial Quotas, Lawsuit Alleges.” Fox News, September 1, 2022. https://www.foxnews.com/media/amex-pushed-white-employees-promoted-black-colleagues-meet-racial-quotas-lawsuit-alleges; O’Neil, Tyler. “American Express Engages in ‘reverse Discrimination’ against White People, Current and Former Employees Say.” Fox Business, September 9, 2021. https://www.foxbusiness.com/politics/american-express-reverse-discrimination-white-people-former-employee.
17 Dickerson, Brad. “Federal Jury Awards $10M to Former Novant Health Employee in Discrimination Case,” WBTV, October 27, 2021. https://www.wbtv.com/2021/10/27/federal-jury-awards-10m-former-novant-health-employee-discrimination-case/.
18Id.; see also The Associated Press. “Ex-Starbucks Manager Awarded $25.6 Million in Case Tied to Arrests of 2 Black Men,” NPR, June 15, 2023. https://www.npr.org/2023/06/15/1182359923/ex-starbucks-manager-awarded-25-6-million-in-case-tied-to-arrests-of-2-black-men#::text=Puskar%2FAP-,Jurors%20in%20a%20federal%20court%20in%20New%20Jersey%20awarded%20%2425.6,of%20the%20chain’s%20Philadelphia%20locations.
19 Guynn, Jessica. “Microsoft Plan to Increase Black Representation in Its U.S. Workforce Probed by Labor Department.” USA TODAY, October 6, 2020. https://www.usatoday.com/story/tech/2020/10/06/microsoft-diversity-african-americans-black-department-of-labor-trump-george-floyd/5902478002/.
20 Brown, Jon. “America First Legal Hits Mars with Civil Rights Complaint, Cites Candy Giant’s Woke Hiring, Training Practices.” Fox Business, April 29, 2023. https://www.foxbusiness.com/politics/america-first-legal-hits-mars-civil-rights-complaint-cites-candy-giants-woke-hiring-training-practices.
21 America First Legal. “America First Legal Files Civil Rights Complaint against Nordstrom for Unlawful, Racist, Sexist Hiring Practices.” America First Legal, June 23, 2023. https://aflegal.org/america-first-legal-files-civil-rights-complaint-against-nordstrom-for-unlawful-racist-sexist-hiring-practices/.
22 Brown, Jon. “BlackRock Internship Discriminates under ‘Guise’ of Equity: Complaint.” Fox Business, April 18, 2023. https://www.foxbusiness.com/politics/blackrock-internship-discriminates-under-guise-of-equity-complaint.
23 Kobach, Kris and Skrmetti, Jonathan. Letter to Fortune 100 Companies. July 13, 2023. https://s.wsj.net/public/resources/documents/AGLetterFortune100713.pdf.
24 “America First Legal Files Federal Civil Rights Complaint against McDonald’s for Unlawful and Racist Hiring Practices.” America First Legal, April 5, 2023. https://aflegal.org/america-first-legal-files-federal-civil-rights-complaint-against-mcdonalds-for-unlawful-and-racist-hiring-practices/.
25 See, e.g., “McDonald’s Asked by Conservative Shareholders to Account for Impacts of Racist Policies.” The National Center for Law and Public Policy, May 25, 2023. https://nationalcenter.org/ncppr/2023/05/25/mcdonalds-asked-by-conservative-shareholders-to-account-for-impacts-of-racist-policies/; Morenoff, Dan. “Open Letter on Behalf of Shareholders of McDonald’s Corporation.” American Civil Rights Project, March 25, 2022. https://www.americancivilrightsproject.org/blog/open-letter-on-behalf-of-shareholders-of-mcdonalds-corporation/.
26 See 42 U.S.C. § 1981(a) (allowing punitive damages where defendant “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.”).
27 Ohio Revised Code Sec. 4112.02(E)(4).
28 Ohio Revised Code Sec. 4112.02(E)(5).
29 Ohio Revised Code Sec. 4112.02(E)(1).
30 McDonald’s. “McDonald’s Launches Push for Gender Balance and Diversity,” Mar. 8, 2019, https://corporate.mcdonalds.com/corpmcd/our-stories/article/gender_balance_push.html; McDonald’s “Global Diversity, Equity & Inclusion: Elevating Voices and Driving Action with Accountability,” July 30, 2020, https://corporate.mcdonalds.com/corpmcd/our-stories/article/global-diversity.html.
31 Green, Jeremiah and Hand, John R.M. “Diversity Matters/Delivers/Wins Revisited in S&P 500 Firms,” August 6, 2021. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3849562.
32 Klein, Katherine. “Does Gender Diversity on Boards Really Boost Company Performance?” Knowledge at Wharton, May 18, 2017. https://knowledge.wharton.upenn.edu/article/will-gender-diversity-boards-really-boost-company-performance/.
33 Fried, Jesse M. “Will Nasdaq’s Diversity Rules Harm Investors?” Social Science Research Network, January 1, 2021. https://doi.org/10.2139/ssrn.3812642.
34 McDonald’s. “McDonald’s 2021-2022 Global Diversity, Equity and Inclusion Report,” Dhttps://corporate.mcdonalds.com/content/dam/sites/corp/nfl/pdf/McDonalds_Corporation_Diversity_Equity_and_Inclusion-2021-2022.pdf.
36 Jones v. Alfred H. Mayer Co., 329 U.S. 409, 432 (1968).
37 McDonald v. Santa Fe Trail Tranps. Co., 427 U.S. 273, 295 (1976) (Marshall, J.).
38 Moses v. Comcast, No. 1:22-cv-00665, (S.D. Ind. Apr. 4, 2022) (Compl.), available at https://will-law.org/wp-content/uploads/2022/03/Moses-v-Comcast-Complaint-with-Verification-Pages-FINAL.pdf.
40 Roth, Collin. “Small Business Owners Sue Cable Giant Comcast for Illegal Race Discrimination.” Wisconsin Institute for Law & Liberty, February 15, 2023. https://will-law.org/small-business-owners-sue-cable-giant-comcast-for-illegal-race-discrimination/.
41 See New York State Pistol and Rifle Ass’n v. Nigrelli, No. 1:18-cv-134 (N.D.N.Y. Feb. 9, 2023) Dkt. 63 (Plfs.’ Not. of Filing of Docs. ISO Mot. for Atty. Fees) (indicating Paul Clement’s current rate is over $1800 per hour).
42 Orlando, Richard C., Su, Weicheih, Peng, Mike and Miller, Carliss, “Do External Diversity Practices Boost Focal Firm Performance? The Case of Supplier Diversity.” The international Journal of Human Resources Management, Vol. 26, No. 17, 2227 (2015), https://personal.utdallas.edu/mxp059000/documents/Peng15_IJHRM_RichardSuMiller_26(17_Sept)2227-47.pdf.
43 Murphy, E. E. “Problems persist, yet payoff can mean BUSINESS.” Purchasing. Reed Business Information, Inc. (US) (1998).
44 McDonald’s. “A Look at How Our Global DEI Strategy Has Come to Life in 2021,” Dec. 8, 2021, https://corporate.mcdonalds.com/corpmcd/our-stories/article/DEI-system-update.html.
46 See, e.g., D.C. Code § 2-1402.62 (“It shall be an unlawful discriminatory practice for any person to aid, abet, invite, compel or coerce the doing of any of the acts forbidden under the provisions of this chapter or attempt to do so.”); Oregon Revised Statute § 659A.03(1)(g) (making it an “unlawful employment practice . . . for any person, whether an employer or employee, or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act or attempt to do so.”).
47 Griffin v. Sirva, Inc., 858 F.3d 69 (2d Cir. 2017).
48 Dingle, Derek T. “McDonald’s, Corporate Partners Sign New Diversity Equity and Inclusion Commitment To Boost Purchases With Diverse Suppliers.” Black Enterprise, July 22, 2021. https://www.blackenterprise.com/mcdonalds-corporate-partners-sign-new-diversity-equity-and-inclusion-commitment-to-boost-purchases-with-diverse-suppliers/.
49 Strine, Leo E. “The Dangers of Denial: The Need for a Clear-Eyed Understanding of the Power and Accountability Structure Established by the Delaware General Corporation Law,” 50 Wake Forest Law Rev. 761 (2015). https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2581714_code711466.pdf?abstractid=2576389.
51 “Chris Kempczinski, President and CEO of McDonald’s,” Business Roundtable, https://www.businessroundtable.org/about-us/members/chris-kempczinski-president-and-ceo-mcdonalds.
52 Business Roundtable. “Our Commitment – Business Roundtable – Opportunity Agenda,” February 15, 2023. https://opportunity.businessroundtable.org/ourcommitment.
53 Yahoo Finance. “McDonald’s Corporation.” https://finance.yahoo.com/quote/mcd/holders/.
54 Frank, John. “Larry Fink ‘Ashamed’ to Be Part of ESG Political Debate.” Axios, June 26, 2023. https://www.axios.com/2023/06/26/larry-fink-ashamed-esg-weaponized-desantis.
55 BlackRock Investment Stewardship. “Proxy Voting Guidelines for U.S. Securities.” January 2023. https://www.blackrock.com/corporate/literature/fact-sheet/blk-responsible-investment-guidelines-us.pdf.
56 Igielnik, Ruth. “Here’s How Americans Feel about Affirmative Action, According to the Polls.” The New York Times, June 29, 2023. https://www.nytimes.com/2023/06/29/us/politics/affirmative-action-polls.html.
57 Mitchell, Travis. “Views on America’s Growing Racial, Ethnic Diversity | Pew Research Center.” Pew Research Center’s Social & Demographic Trends Project, September 4, 2020. https://www.pewresearch.org/social-trends/2019/05/08/americans-see-advantages-and-challenges-in-countrys-growing-racial-and-ethnic-diversity/.