The judge asked Boeing whether it would follow its own DEI policy to block a proposed monitor.
The appointment of an independent monitor to make sure Boeing follows compliance and safety rules is a key component of the deal in which Boeing agreed to plead guilty to a felony charge of conspiring to defraud the U.S. government.
O'Connor has long been a favorite of conservative lawyers looking for a court to hear their lawsuits against policies issued by Democratic presidents. In 2018, the judge issued a ruling striking down President Barack Obama's hallmark Affordable Care Act, although the U.S. Supreme Court overturned that decision. He also has sought to toss out expanded rights for transgender people.
Attacks against diversity, equity and inclusion have become a staple among conservative Republican politicians. Florida Gov. Ron DeSantis built a campaign for the GOP nomination for president against "woke" liberal policies, although his candidacy failed. A dozen states, including Texas, have new laws limiting or banning DEI policies at their public universities.
Conservatives argue that DEI lets less qualified people win admission to college or land important jobs that have a bearing on public safety. Some conservatives on social media blamed Boeing's DEI policy after a door plug blew off one of its airliners during an Alaska Airlines flight in January.
Boeing struck a deal with the Justice Department in July in which the company agreed to plead guilty to conspiracy to commit fraud for misleading federal regulators who approved pilot-training requirements for the 737 Max, the newest version of Boeing's venerable 737 airliner.
As a result, airlines and pilots did not know about a new flight-control system called MCAS until it played a role in a deadly crash in Indonesia in October 2018. MCAS was implicated again in a second fatal Max crash that occurred in March 2019 in Ethiopia. In all, 346 people died.
The plea agreement would require Boeing to pay a $243.6 million fine, spend at least $455 million on compliance and safety programs and accept the independent monitor's oversight.
Boeing and the Justice Department want O'Connor to approve the deal, which would essentially replace a 2021 settlement that allowed Boeing to avoid prosecution but did little to stem concerns about the company's commitment to safety and quality.
The Federal Aviation Administration increased its oversight of Boeing after the door-plug incident in January, and whistleblowers have alleged that the company cut corners on safety.
Relatives of passengers who died in the crashes want O'Connor to reject the plea agreement, which they call a sweetheart deal. They want Boeing to go on trial and face tougher punishment. They specifically oppose the section on the monitor because they want the judge — and not the government and Boeing — to pick the monitor.
Nadia Milleron, a Massachusetts woman whose daughter, Samya Stumo, died in the Ethiopia crash, said Wednesday that she did not know what to make of the judge's line of questions about choosing the monitor.
“It seems irrelevant to me,” Milleron said. “The bottom line is safety, and if the judge is going after safety, great. I don’t understand his agenda with DEI.”
Experts on corporate behavior say the monitor could do more to improve safety than the 2021 settlement did so long as the person is truly independent and can report any concerns directly to the court without going through the Justice Department. The monitor would oversee Boeing's compliance with safety protocols and its actions to prevent future acts of fraud.
During a hearing last week, O’Connor asked lawyers for the government and Boeing about the monitor and how DEI policies could affect the choice. The plea deal states that the Justice Department would select the person with “input” from Boeing.
A Justice Department lawyer said the provision doesn't mean that a less-qualified person would be picked, only that the government will consider all candidates. Boeing lawyers did not object to the monitor-selection process outlined in the plea agreement.
In an order Tuesday, the judge wrote that it is important to know if DEI considerations would promote Boeing's safety and compliance efforts. He asked the Justice Department and Boeing to respond in writing by Oct. 25.
“Both the DOJ and Boeing have publicly acknowledged their commitment to advance diversity, equity, and inclusion ('DEI'),” including a government plan to use diversity and equity in hiring federal workers, O’Connor wrote.
Boeing’s website, he added, “touts its commitment ‘to creating a culture of inclusion’ and ‘set of aspirations’ it will strive to achieve by 2025 to advance equity and diversity and build a culture of inclusion,” including racial quotas and hiring more Black workers.
In considering whether to accept the plea deal, O'Connor wrote, “it is important to know: how the provision promotes safety and compliance efforts” at Boeing and whether the company would strike an applicant based on its own DEI commitment.
It is not clear whether the judge is making a statement about DEI policies or whether he would seize on the issue to throw out the plea agreement.
“I do not see this as a strategic move, but as a detour motivated by the court’s skepticism of DEI,” said John Coffee, a law professor at Columbia University who studies corporate governance and white-collar crime and has followed the Boeing case. “He is a conservative. Possibly he wants to delay the decision, but that is an unsupported hunch.”
The Justice Department and Boeing said they would comply with the judge's order and declined to comment further.