In June, the United States Supreme Court in Students of Fair Admissions v. President & Fellows of Harvard College ruled that admissions policies at Harvard and the University of North Carolina violated the Equal Protection Clause of the Fourteenth Amendment because they take into account race as a factor in the admissions process. While the decision did not directly address Title VII of the Civil Rights Act or race discrimination in employment, its potential effects on employers’ efforts towards diversity, equity, and inclusion (DEI) in the workplace have sparked valid concerns.
Following the Supreme Court’s ruling, there has been a notable focus on DEI in the workplace. In July, roughly two weeks after the Supreme Court’s ruling, several state attorneys general sent a letter to Fortune 100 CEOs reminding them of their obligations to refrain from discriminating on the basis of race, including DEI efforts, or they “will face serious legal consequences.” The threat of legal action will certainly cause some companies to reconsider or suspend DEI efforts entirely. Nevertheless, it also presents an opportunity for all companies to evaluate their DEI policies to ensure they aren’t inadvertently discriminating based on race or any other protected characteristic.
What is the most immediate effect of the affirmative action decision? Reduced diversity in the talent pipeline. Educational institutions may become less diverse due to changes they will have to implement in their admissions processes. That means businesses who recruit from those educational institutions may have a less diverse talent pool to recruit from and consequently, a less diverse workforce. Since we know a diverse and inclusive workplace helps in recruitment efforts in other areas, this effect is two-fold.
Employers, as evident from the Fortune 100 letter, should expect more scrutiny of their DEI programs. That may mean increased claims or challenges to policies and processes. Therefore, it’s a great opportunity to audit your DEI program. That may include conducting a disparate impact analysis to determine if certain groups are disproportionately impacted by your policies, and ensuring that none of your DEI efforts set a blatant preference based on race or any other protected characteristic. Your DEI efforts should be designed in a way to attract a diverse range of workers without expressing a preference for any one.
It should be noted that a group of 21 state attorneys general, led by Nevada’s Aaron Ford, issued their own letter to Fortune 100 CEOs reminding them that DEI programs remain lawful and serve important public and business purposes.
There is no reason for employers to eliminate their affirmative action policies or DEI initiatives at this time. However, employers should take this opportunity to critically assess their policies and practices to promote diversity, equity, and inclusion while ensuring they align with legal requirements and the principles of fairness.
