DEI Initiatives After the Supreme Court’s Students for Fair Admissions Affirmative Action Ruling

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199 (June 23, 2023) (“SFFA”), the U.S. Supreme Court struck down Harvard’s and the University of North Carolina’s admissions process where race was used as a factor, as violating Title VI of the Civil Right Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. Some think that based on this ruling, the private sector’s diversity, equity, and inclusion (DEI) initiatives may be next.

Generally, workplace DEI initiatives are governed by Title VII of the Civil Rights Act of 1964 (Title VII) and other federal, state, and local employment laws. Title VII prohibits discrimination on the basis of race. Lawsuits have previously been filed as a result of DEI initiatives that purportedly violated Title VII. Thus, the SFFA decision provides some insight on how the Court may address DEI initiatives.

DEI initiatives may include:

• removing stereotypical language from job postings;
• hiring and promotional interviews with objectively measurable criteria;
• transparent promotional processes;
• merit-based promotions;
• flexible work hours;
• “open door” policy for grievances;
• mentorship programs; and
• college outreach programs

Such programs are not necessarily used to achieve a certain racial or gender workforce balance, but are rather aimed at providing a psychologically welcoming work environment where all persons feel accepted and also aimed at reducing any possible marginalization that could be occurring as a result of unconscious biases.

Action Plan

Contemplating DEI programs? Employers seeking to implement DEI programs should formulate what initiatives it seeks to undertake and then consult legal counsel to ensure compliance with existing laws.

Communication. Some employees may be concerned about current DEI programs and may feel that their employer will jettison some initiatives. Employers should develop a communication strategy on how the employer will address DEI initiatives going forward in light of the SFFA decision.

Review existing policies and training. Employers should review current DEI initiatives and training to ensure that such policies and training are not promoting discriminatory behavior. Managers and supervisors should be reminded of what DEI is and what it is not (e.g. racial quota). Rather, all employment decisions must comport with federal, state, and local law.

Workplace culture. Employers should review their current workforce culture initiatives with an eye toward what current DEI programs have resulted in the greatest retention and what policies may need to be updated.

If you need legal assistance with DEI policies, please contact Donald S. Rothschild or Brian M. Dougherty.
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Donald S. Rothschild
Brian M. Dougherty
Goldstine, Skrodzki, Russian, Nemec and Hoff, Ltd.
835 McClintock Drive, Second Floor
Burr Ridge, Illinois 60527
(630) 655-6000
GSRNH.COM

The authors, publisher, and distributor of this GSRNH Legal Update are not rendering legal or other professional advice or opinions on specific facts or matters. Under applicable rule of professional conduct, this communication may constitute attorney advertising.

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