Will Blockbuster Affirmative Action Ruling Stifle DEI Programs?

Author: David B. Weisenfeld

Date: July 6, 2023

The Supreme Court's landmark 6-3 decision last week to strike down race-based admissions programs in higher education has far-reaching implications. And despite the focus on those admissions programs at Harvard and the University of North Carolina specifically, the impact cannot help but extend to the workplace.

That's why more than 80 corporations and business groups joined forces to file amicus briefs in these joint cases in support of the universities with a veritable who's who of big names involved, including:

  • Apple;
  • General Electric;
  • Google;
  • Intel;
  • IKEA;
  • Salesforce; and
  • United Airlines.

In one of those briefs, the companies argued that these admissions programs using race as a "plus factor" in admissions should continue because they create a pipeline of highly qualified future workers and business leaders.

But the Supreme Court's holding made clear that these programs were unconstitutional under the Equal Protection Clause of the 14th Amendment. Writing for the Court, Chief Justice John Roberts said, "Eliminating racial discrimination means eliminating all of it."

Addressing the diversity argument, he noted that remedying societal discrimination is not a compelling interest that justifies race-based state action. The Chief Justice added that nothing prohibits universities from considering an applicant's discussion of how race affected their life, so long as that discussion is concretely tied to a unique ability that the particular applicant can contribute to the university.

Bottom Line for Employers

The Supreme Court's ruling represents a significant change that is likely to harm the efforts of many colleges and universities to ensure diverse student bodies. And as Equal Employment Opportunity Commission (EEOC) Chair Charlotte Burrows noted, it's not hard to connect the dots for how this result could impact employers.

"That's a problem for our economy because businesses often rely on colleges and universities to provide a diverse pipeline of talent for recruitment and hiring," said Burrows in a statement. "Diversity helps companies attract top talent, sparks innovation, improves employee satisfaction, and enables companies to better serve their customers."

Justice Sonia Sotomayor went even further in a lengthy and pointed dissent. "The devastating impact of this decision cannot be overstated," she wrote. While Justice Sotomayor understandably focused on what the result will mean for racial inequity in higher education, the employment landscape was not far from her mind either.

She noted, for instance, that "stark racial disparities exist in unemployment rates." Justice Sotomayor also wrote that the Supreme Court majority is creating a leadership pipeline that is less diverse than our increasingly diverse society.

So, will this ruling sound a death knell for corporate diversity, equity and inclusion (DEI) programs?

States Are Watching Closely

While the Supreme Court did not address diversity in the workplace directly, its ruling undoubtedly may embolden some states to take further aim at DEI initiatives. Earlier this year, the office of Texas Gov. Greg Abbott warned state agencies in the Lone Star State not to use DEI initiatives in hiring.

In 2022, a Florida law known as the Stop WOKE Act placed limits on the content of workplace diversity and inclusion training. While a judge later blocked enforcement of the law as it applied to private employers, the Supreme Court's broad ruling could spark renewed efforts to impose further limits.

"There may be more states and advocacy groups looking for opportunities now to challenge diversity programs that are not properly designed or communicated," said Matthew Camardella, co-leader of the Affirmative Action practice group at Jackson Lewis.

Not So Fast For DEI's Demise

Despite those concerns, EEOC Chair Burrows notes that it remains lawful for employers to implement diversity, equity, inclusion and accessibility programs that seek to ensure workers of all backgrounds have equal opportunity in the workplace.

That doesn't mean, however, that employer DEI programs are immune from this ruling. It's imperative that HR reassess policies to make sure they're handling affirmative action issues properly, according to Stephen Paskoff, CEO of Employment Learning Innovations.

"If you have disparate treatment in your workplace where people are treated differently when they perform or behave in the same or similar manner, that will continue to be an issue and needs to be looked at very, very carefully," Paskoff added.

DEI remains an enviable goal that can help create a more productive workforce. However, employers will need to stay tuned because it's also an issue that may spark litigation for the foreseeable future.

"What we're recommending is taking an internal assessment of your DEI programs because the risk continuum has shifted," said Matthew Camardella in noting that some white males may feel they have more license to bring a discrimination case. "The law hasn't changed [for employers] but the likelihood of claims has increased in the post-Harvard landscape so it's a great time to reassess."