As anticipated, the U.S. Supreme Court's decision in the two companion cases brought by the Students for Fair Admissions, Inc. (SFFA) against Harvard University (Harvard) and the University of North Carolina (UNC) ended affirmative action for college admissions by effectively overruling the Court's longstanding precedent in Grutter v. Bollinger and other cases allowing for race-conscious admission policies for higher education.
While the full implications of the Court's decision remain to be seen, many companies have been anticipating how the decision could affect their workplace diversity, equity, and inclusion (DEI) and affirmative action programs. As we previously reported, the Court's decision does not directly prevent companies from continuing workplace DEI programs and affirmative action plans. Companies, however, may be indirectly impacted by the decision, including by a potential increase in legal challenges to their DEI programs. Employers should consider their workplace DEI programs and strategies as they brace for the potential impact of the Court ending affirmative action for college admissions.
The Court's Decision
The Court's decision involves two cases stemming from claims by SFFA challenging the use of race as a factor in the admissions programs at Harvard and UNC. SFFA specifically claimed that Harvard's and UNC's admissions policies violated Title VI of the Civil Rights Act of 1964 (Title VI) and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution by, among other things, unlawfully using race to give a preference to underrepresented minority applicants.
The Court held that use of race in Harvard's and UNC's admissions programs violated the Equal Protection Clause of the Fourteenth Amendment. The majority opinion was authored by Chief Justice Roberts and joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Justices Thomas, Gorsuch, and Kavanaugh wrote concurring opinions. Justice Sotomayor issued a dissent in the Harvard case, joined by Justice Kagan (with Justice Jackson recused), and Justice Jackson issued a dissent in the UNC case, joined by Justices Sotomayor and Kagan.
Although the Court's majority decision did not address workplace DEI or affirmative action programs related to employment, the following are some of the more notable parts of the decision.
- The Court found that Harvard's and UNC's programs lacked "sufficiently focused and measurable objectives warranting the use of race." The Court reasoned that the stated interests in "training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens," while "commendable goals," were not measurable or "sufficiently coherent for purposes of strict scrutiny."
- The Court found that the programs at issue employed race in a "negative manner" and involved "racial stereotyping." The Court stated that many universities have "wrongly concluded that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation's constitutional history does not tolerate that choice." The Court, however, left a possible opening for universities to consider an applicant's "discussion of how race affected the applicant's life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university."
- The Court found that Harvard's and UNC's admissions programs lacked "meaningful ends points." Recognizing the 25-year period that the Grutter Court signaled might be the endpoint for affirmative action in college admissions, this Court found that we are 20 years past Grutter with no "end to race-based college admissions in sight."
In her dissent, Justice Sotomayor explained the many benefits of diversity as a compelling interest, asserting that "without any new factual or legal justification, the Court overrides its longstanding holding that diversity in higher education is of compelling value."
Potential Implications for Workplace DEI Programs
As workplace DEI and affirmative action programs are governed by Title VII and other federal, state, and local employment anti-discrimination laws that were not at issue in the college admission cases, the Court's ruling does not directly apply to such workplace programs. The Court's decision, however, could indirectly affect corporate DEI programs in certain ways as summarized below.
- Increased Challenges to Workplace DEI Programs: The Court's decision could encourage challenges both for and against workplace DEI and affirmative action programs. On the one hand, some companies have recently faced reverse discrimination claims challenging their workplace DEI programs from employees, investors, and interest groups. Although SFFA focused on affirmative action in college admissions, other similar interest groups actively are seeking test cases to challenge workplace DEI and affirmative action programs. Simultaneously, companies have been challenged by employees, shareholders, and interest groups who seek to maintain or expand existing DEI and affirmative action efforts by, for example, lawsuits accusing major companies of mispresenting the effectiveness of their DEI initiatives.
- Potential Increase in DEI Legislation: The Court's decision may also embolden lawmakers to increase legislative efforts targeting workplace DEI initiatives. In recent years, employers have been caught in the crosshairs of navigating the patchwork of laws aimed at restricting and mandating workplace DEI efforts. Some states, including Florida, Texas, and Kansas, have passed restrictions against DEI policies, trainings, and practices. While other states, such as California and Washington, have enacted laws with mandatory diversity requirements for boards or requirements for reporting diversity metrics. Notably, courts have enjoined and found unconstitutional a few of those laws, such as Florida's law banning certain DEI training and California's law imposing diversity mandates for company boards. Nevertheless, the Supreme Court's decision could spark an increase in legislative efforts related to employer DEI and affirmative action programs.
- The Court's Reasoning Could Be Used to Challenge Corporate DEI Programs: Litigants could try to rely on the Court's reasoning in actions challenging corporate workplace DEI and affirmative action programs. Courts have relied on cases in the college admissions context under Title VI as persuasive authority for assessing reverse discrimination claims under Title VII and other antidiscrimination laws. Notably, Justice Gorsuch's concurring opinion analyzed some of the similarities between Title VI and Title VII. Accordingly, the Court's reasoning potentially could be used to support challenges to common DEI initiatives—like diversity fellowships or internships—on the basis that these programs are impermissibly based on protected class membership.
- Diversity Recruiting May Become Harder: Employers may face increased challenges in recruiting candidates from underrepresented racial groups. For example, in the two-year period after California's 1996 law barring racial preferences in college admissions, the number of Black students in California universities dramatically dropped. Other states that have banned affirmative action in college admissions have experienced similar declines in racial diversity. If the Court's decision leads to a smaller pipeline of diverse students in higher education, employers may struggle to recruit qualified diverse talent through their DEI and affirmative action efforts. Indeed, as Justice Sotomayor declared in her dissent, admission to college is often "the entry ticket to top jobs in the workplaces."
Key Takeaways for Employers
Employers should review their DEI and affirmative action initiatives and consider how and if to revise those programs in light of the potential implications of the Court's decision. The approach employers adopt will likely depend on their preferences and risk tolerance. Some employers may prioritize assessing ways to continue their commitment to DEI consistent with the Court's decision. Companies should consider several measures outlined below to mitigate the risk of potential challenges to their workplace DEI and affirmative programs.
- Review DEI Programs for Vulnerabilities: Companies should review existing DEI efforts with an eye toward areas of vulnerability and confirm that the initiatives do not create unlawful preferences based on protected characteristics or include quotas or set asides. Employers should consider including race-neutral factors, such as socioeconomic status, first-generation professionals, and geographic diversity, which could help increase diversity in the workplace while mitigating the risk of potential challenges.
- Review Written DEI Materials: Employers should review their DEI program materials for any statements that describe their companies' practices in a manner that could be viewed as unlawful. In some cases, plaintiffs have used statements in DEI policies and literature to support reverse discrimination claims.
- Justify Efforts for DEI Programs: Employers should be prepared to justify the importance of their existing DEI programs and how those programs are consistent with the law.
- Train Leadership and Managers: Companies should ensure that their leaders and managers are educated on the benefits and objectives of the companies' DEI and affirmative action programs. It will be important for managers to understand what DEI means and that they cannot give preferential treatment to underrepresented groups when making employment decisions.
- Review Diversity Trainings for Risk: Employers should review current diversity trainings, including unconscious bias training, considering recent legislation aimed at limiting DEI programs and trainings that might make their programs vulnerable to attack.
- Monitor State Laws on DEI: Companies should continue to monitor state and local laws and regulations aimed at limiting or requiring DEI efforts to ensure compliance with those laws.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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