DEI Meets Discrimination? Why Clorox Couldn’t Wipe Away a Gender Bias Lawsuit

Diversity goals can strengthen a workplace — or, in some cases, spark a lawsuit. Just ask Clorox, now facing a revived gender discrimination claim despite its well-meaning initiatives.

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TL;DR: A white, male Clorox salesperson alleged age, race, and gender discrimination after he was let go during a company reorganization. Although the lower court threw out all his claims, the Ninth Circuit just reversed in part — reviving his gender discrimination claim. Clorox’s own diversity goals may have provided the plaintiff just enough ammunition to get to a jury.

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A Reorganization, a Termination, and a Lawsuit

In a reminder that company diversity initiatives can sometimes complicate employment decisions, the Ninth Circuit on Friday reversed a summary judgment ruling in which the lower court found that the plaintiff, a 63-year-old white male, raised triable issues regarding whether gender bias contributed to his discharge.

What the Evidence Showed

The employee had been with Clorox for years, successfully selling products to Costco. In 2021, Clorox reorganized its sales force, aiming for what it called “leading-edge” strategic relationships with major retailers. Following the reorganization, Clorox terminated the employee and replaced him with a younger white woman.

Clorox explained the decision by citing concerns about the employee’s “strategic leadership” skills and alleged reliance on his former supervisor. But the employee pointed to consistently positive performance reviews and a lack of documentation suggesting any performance issues before his termination.

The Ninth Circuit found this evidence of inconsistency sufficient to raise a jury question about whether Clorox’s reasons were pretextual — at least as to the gender discrimination claim.

How DEI Efforts Entered the Picture

Crucially, the court also flagged Clorox’s “IGNITE” diversity initiative, which included goals to increase the number of women in management. The lower court noted that “a diversity policy alone does not establish discrimination.” However, while diversity efforts may be lawful, the court noted that such initiatives can serve as circumstantial evidence of bias if a terminated employee can tie them to their own job loss. Here, Clorox’s “representation targets” for women in leadership — combined with the employee’s sudden ouster and replacement — provided circumstantial evidence that created factual disputes for a jury to resolve.

Employer Takeaways

• Diversity goals are important — but when making employment decisions, it’s essential to document legitimate, individualized reasons that are free from bias.
• Be consistent: glowing performance reviews that don’t mention alleged deficiencies can undercut later “reorganization” justifications.
• Support diversity without crossing legal lines: Employers must carefully structure DEI efforts to avoid unlawful quotas and ensure that diversity goals do not become discriminatory practices.

To be clear, Clorox’s “IGNITE” diversity initiative may be squeaky clean. The plaintiff will bear the burden of proving otherwise at trial.

Final Thought…

No workplace is spotless when it comes to litigation risk. But with thoughtful planning and careful execution, employers can keep both their diversity efforts and employment practices sparkling clean.