A federal appeals court has shut the door on a race discrimination suit against Progressive, handing insurers a fresh procedural shield.
The US Court of Appeals for the Sixth Circuit refused on May 19 to rehear the case with the full court sitting. The denial leaves in place a February panel ruling that tossed the suit on a procedural threshold known as standing.
The dispute started with a grant program. Progressive offered 10 grants ranging from $5,000 to $25,000 to help qualifying small businesses buy a commercial vehicle. According to the dissent, the program targeted barriers facing Black entrepreneurs in accessing capital, and grants were open only to businesses majority owned and operated by at least one Black-identifying entrepreneur.
Nathan Roberts, who owns Freedom Truck Dispatch, started the application. His company met the size, revenue and business-type criteria. But Roberts is white. When he reached the part of the form spelling out the racial eligibility rule, he closed it without submitting.
He sued Progressive and Circular Board, the online platform that ran the application, under 42 U.S.C. § 1981, the post-Civil War statute that bars private actors from racial discrimination in contracting.
The district court dismissed for lack of standing. A Sixth Circuit panel agreed, with Judge Boggs dissenting. The panel majority assumed Roberts had been injured but said the injury was self-inflicted because he never submitted the form.
Roberts asked the full court to rehear. It declined. Judge Boggs would have granted panel rehearing. Judges Thapar and Hermandorfer wrote separate dissents from the denial, and Judge Griffin joined Hermandorfer's.
Judge Thapar said the ruling defies Supreme Court precedent that lets plaintiffs skip futile applications they are barred from winning by race. He warned the panel's approach rewards companies seeking to avoid liability for race discrimination, and predicted savvy companies will simply make their applications harder to file in order to insulate themselves from suit.
Judge Hermandorfer pointed at a 2002 Sixth Circuit case, Aiken v. Hackett, that lower courts have read to require race-discrimination plaintiffs to prove they would have received the benefit under a race-neutral policy. That reading, she wrote, risks functionally immunizing race-based programs from judicial review.
For insurers, the decision lands on two live fronts. Corporate diversity-focused grants and sponsorships, common across major carriers, remain a target under Section 1981, echoing the wave of challenges against programs like the Fearless Fund grant. And in the Sixth Circuit, defendants now have a sturdier procedural shield: if a plaintiff doesn't submit a futile application, traceability becomes the battleground.
The dissents flag a tactical pattern too. Both judges warned that companies challenged over race-based programs follow a familiar playbook: shut the program down, claim mootness and try to kick the case for lack of jurisdiction. The denial of rehearing, in their view, hardens that playbook in the circuit.
The panel ruling, Roberts v. Progressive Preferred Ins. Co., 167 F.4th 955, now stands as the controlling word in the Sixth Circuit. Whether the plaintiffs take the fight to the Supreme Court is not addressed in the order.
