Originally Posted: 6/23/23, Updated: 6/29/23
Today, the Supreme Court issued its much-anticipated decision in two cases challenging race conscious university admissions policies, Students for Fair Admission v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. In it, the Court overturned 20-year old caselaw and ruled that educational institutions are no longer permitted to consider an applicant's race in making admissions decisions.
This sea-change in the law arises at the same time as a surge in so-called "anti-woke" statutes, or proposed laws that seek to limit institutions' ability to educate employees and students on issues of systemic racism. This confluence of events has employers wondering whether their Diversity, Equity, and Inclusion ("DEI") programs, many of which rapidly accelerated in the last three years, may be at risk.
The short answer is no, or at least not directly. The Supreme Court's decision on affirmative action in university admissions is based on its assessment of Title VI, regarding discrimination by organizations relying on federal funding, and on the Equal Protection Clause of the Fourteenth Amendment, which applies to governmental entities, not private parties. In contrast, private employment is governed by Title VII, as well as by state and local non-discrimination laws. And the Supreme Court acknowledged that its decision does not change workplace discrimination or affirmative action programs for (non-university) employers. The Supreme Court's decision therefore does not interpret a statute that governs most private employment relationships.
Second, and perhaps more importantly, DEI work is not the same thing as affirmative action in universities. The Students for Fair Admissions decision holds that universities cannot use race as a "plus factor" in admissions decisions. In the employment context, it is already illegal to use race as a "plus factor" in employment decisions. This would include hiring decisions, promotion decisions, or any other significant decision related to the terms or conditions of employment. DEI programs, including mandatory affirmative action programs for federal contractors, are intended to aid in developing a pipeline of diverse talent, ensuring a diverse applicant pool, and removing barriers that could prevent individuals from underrepresented groups from being hired. DEI programs are also about creating an equitable and inclusive workplace where employees of all backgrounds, including employees from marginalized groups, are able to succeed. No DEI program should condone preferential treatment based on race or any other protected characteristic. In other words, if your DEI program was legal before the Supreme Court's ruling today, it is still legal now.
That does not mean that you should ignore the decision, however. The Students for Fair Admissions decision strikes down an established practice that is intended to alleviate the effects of past discrimination and advance the interest in a diverse student body. Regardless of the technical legal impact, this decision will have a cultural impact. It will generate strong reactions, and it will become a topic of conversation in the workplace. Now that the decision is here, employers should be ready to speak competently about this subject, including understanding its relationship to DEI.
While our specific advice will vary by employer, the following are high-level suggestions:
- Ensure you are able to explain the difference between affirmative action for universities and DEI policies and programs at your company. This means emphasizing that DEI programs do not allow for the consideration of race or other protected classes in employment decisions.
- Do not throw away all of your investment in DEI over the last three years or longer. Take this opportunity to restate your commitment to DEI and to assure your employees that this decision will not cause you to retreat from this issue.
- Ensure your leaders are educated on the purpose of your DEI program, including that they understand the way advancing DEI ties into your company's mission and objectives.
- Be aware that employees who are invested in the subject of affirmative action may be impacted by the decision. Create space for employees to share their feelings or to take the time they may need.
- Recognize that there are different perspectives on this issue, and do not penalize employees for voicing their opinions. Do, however, ensure that all communications on this topic are respectful and consistent with your anti-harassment and anti-discrimination policies.
- As with any contentious subject, use caution in determining whether to hold employee discussions on the issue, and if you do decide to host a forum, be sure to engage a facilitator who can ensure the conversation remains respectful and appropriate.
The end of affirmative action in college admissions is, like many issues in the news over the last few years, complex and layered, and it is likely to generate strong feelings among your employees. When in doubt about how to handle an employee concern or how to move forward with a program, please reach out to your partners at DWT.