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WASHINGTON, D.C. – America First Legal (AFL), in partnership with Boyden Gray PLLC, has filed a federal lawsuit on behalf of a senior portfolio manager at Icahn Capital against Bausch + Lomb, Inc. and related parties for blatant racial discrimination in violation of 42 U.S.C. § 1981, which prohibits race-based contracting.
AFL’s complaint alleges that Bausch + Lomb, a global, publicly traded company, entered into an agreement allowing its major investor, Icahn Capital, to appoint two members to its board of directors, on the condition that one appointee be “diverse.” All parties understood this to mean non-white, resulting in the exclusion of AFL’s client — a white, male executive who has served on six other public company boards with a perfect record at shareholder votes on his re-election — who had been Icahn Capital’s preferred candidate and previously named appointee.
At stake is a fundamental question of equality under the law: Can a public company legally condition board appointments based on race?
AFL’s complaint alleges that:
Bausch + Lomb had a prominent activist investor with board appointment rights. However, both portfolio managers overseeing the investment were white. In order to meet its self-imposed diversity quota, Bausch + Lomb insisted on a written contract that prevented the appointment of both white portfolio managers. The company’s general counsel sought to conceal this racially driven qualifier from federal regulators by placing it in a secret “side letter” omitted from SEC filings. As a result, despite his objectively superior qualifications, AFL’s client was denied a board seat and its attendant compensation, while an Asian American colleague, who since left the firm, was appointed because of race. The resulting governance decisions at Bausch + Lomb, which are redacted in the complaint, harmed the profit-based compensation of AFL’s client. The scheme tortiously interfered with our client’s employment contract at a firm known for paying its portfolio managers bonuses in the hundreds of millions of dollars. Punitive damages are further alleged.
This unlawful scheme — which prioritized industry reputation based on diversity quotas over shareholder returns — deprived our client of professional advancement, caused significant financial and reputational harm, and violated both federal civil rights law and the principles of fairness and merit that underpin American commerce.
“Federal law is clear: companies cannot condition employment or board opportunities on race,” said Gene Hamilton, President of America First Legal. “Bausch + Lomb’s decision to impose a racial quota for board appointments is illegal and fundamentally incompatible with equal justice under the law. Our civil rights laws protect all Americans from racial discrimination, and we intend to seek justice for our client.”
“The boardroom is not the place for overt racism in favor of diversity candidates,” said Emily Percival, Senior Counsel at America First Legal. “Bausch + Lomb and its leadership engaged in blatant racial discrimination against our client, the very conduct our civil rights laws were designed to prevent. We intend to hold Bausch + Lomb accountable for shirking its corporate duties to its employees and shareholders in order to engage in illegal social engineering.”
America First Legal remains steadfast in defending the rule of law and the principle of equal justice for all Americans. The law clearly prohibits racial discrimination in all forms and at all levels. This case presents a vital opportunity to reaffirm that equality means equality, not racial engineering by corporate elites.
Read the full complaint here.
Learn more about AFL’s efforts to end illegal racial discrimination here.
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