DEI Programs Are Under Fire: Key Takeaways For Employers From The Affirmative Action Case

On June 29, 2023, the US Supreme Court held that Harvard and the University of North Carolina’s (U.N.C.) race based admissions policies (more commonly known as “affirmative action”) violated the Equal Protection Clause of the Fourteenth Amendment, which prohibits States from denying any person equal protection of the laws of the United States, as well as Title VI of the Civil Rights Act of 1964. The opinion does not directly affect employers, but it has lessons for HR pros hoping to ensure their diversity, equity and inclusion (DEI) initiatives do not unintentionally create liability.

UNDERSTANDING SFFA V. HARVARD COLLEGE

Admittedly, both Harvard and U.N.C. considered an applicant’s race at various stages. Harvard considered an applicant’s race in all five stages of its admission process, and U.N.C. required its admissions officers to consider an applicant’s race, among other factors like academic strength and student background. The schools’ stated goal in considering race was to train future generations of leaders, uncover new knowledge through a diverse student body, encourage the discussion of different viewpoints and ideas, and prepare engaged and productive citizens.

While the Court noted these goals were laudable, it held that it was well-established that colleges and universities cannot consider an applicant’s race as a positive or negative factor in admissions decisions. Reviewing the selection processes under strict scrutiny, the Court noted the processes failed in three major ways:

• the affirmative action policies were too ambiguous for courts to review, as there was no practical way to quantify or qualify the racial standards and criteria imposed;

•the programs engaged in harmful stereotyping; and

•the programs contained no clear endpoint.

In his concurring opinion, Justice Neil Gorsuch noted that these admissions programs also violate Title VI of the Civil Rights Act, which prohibits a recipient of federal funds from intentionally treating any individual worse even in part because of his race, color, or national origin and without regard to any other reason or motive the recipient might assert.

HOW THE RULING AFFECTS EMPLOYERS

While the Supreme Court’s decision has no direct impact on employers, it is anticipated that the decision could raise some red flags regarding DEI initiatives and (reverse) discrimination in the workplace. Justice Gorsuch’s concurring opinion noted that Title VI’s prohibition against discrimination on the basis of race, color or national origin is “[j]ust next door” to Title VII of the Civil Rights Act, which makes it illegal for employers to discriminate on the basis of race, color, religion, national origin or sex (including pregnancy, sexual orientation and gender identity). It also criminalizes any retaliation against an employee for complaining about discrimination, participating in an employment discrimination proceeding like an investigation or lawsuit, or reasonably opposing discrimination (like resisting unwanted sexual advances or helping protect co-workers from unwanted sexual advances in the workplace).

As a result, poorly created and implemented DEI initiatives coupled with a lack of training can create significant liability for employers. Employers must be prepared for these kinds of complaints to ensure their good intentions are not used against them. Indeed, complaints about DEI initiatives, including (reverse) discrimination, are not new and will likely increase as a result of this highly publicized opinion.

Employers should always know (and be able to articulate) the “why” behind employment decisions. Communicating the rationale behind DEI policies is key to demonstrating a lack of discriminatory intent. They should avoid making employmentrelated decisions based on race, sex or other categories prone to discrimination, and should try to avoid financially incentivizing managers or leaders to meet related diversity goals.

Employers should treat employees and candidates for hire as individuals instead of representatives of their respective minority groups. Additionally, employers should refrain from taking any action that could be considered retaliatory against an employee who complains of mistreatment.

By focusing their efforts on removing barriers to inclusion instead of creating unintentional quotas for racial or gender balancing, employers can administer workplace policies and standards equally across all employees while still capturing the essence of DEI. Specific DEI tools like affinity groups, mentoring programs and trainings should be carefully tailored to avoid potential liability.