SCOTUS Reconsidering Affirmative Action—Are DE&I Programs Next?

​The U.S. Supreme Court recently heard oral arguments on two affirmative action cases against Harvard University and the University of North Carolina (UNC).

Students for Fair Admissions, a nonprofit group in Arlington, Va., alleges that Harvard and UNC unfairly give preference to college applicants who are Black, Hispanic or Native American to the detriment of prospective students who are white or Asian American.

Andrew Gordon, an attorney with the law firm Hinshaw & Culbertson LLP in Fort Lauderdale, Fla., said that the high court's decision in 2023 could have implications beyond academia.

"While these two cases deal with affirmative action in the academic world, these high-profile decisions are likely to have a ripple effect far beyond the classroom and may impact boardrooms throughout the U.S.," he said.

Why Would the Workplace Be Impacted?

Supporters of affirmative action say that universities and colleges will become less diverse if race is no longer a factor in the admissions process. Opponents argue that institutions can ensure diversity on campuses without rewarding students based on their race or ethnicity.

In their oral arguments, the Supreme Court's conservative majority expressed doubt for the need for affirmative action in admissions in higher education.

"It is tough to say what the impact will be until there is a ruling from the Supreme Court, as that ruling will dictate what the paradigm shift may be moving forward for use of race-based criteria in the higher education admissions process," Gordon said.

If the Supreme Court prohibits race consciousness in university admissions, it will likely result in more cases pertaining to employer diversity, equity and inclusion (DE&I) programs Gordon said.

However, the two cases are being analyzed under Title VI of the 1964 Civil Right Act, which deals with education, rather than Title VII of the 1964 Civil Right Act, which deals with workplaces. Rulings in education cases do not necessarily influence workplace-related policies and efforts.

"Nevertheless, historically, courts have looked at rulings in Title VI affirmative action cases and imputed those rulings, to a certain degree, on Title VII cases, which is why employers should pay close attention to the Supreme Court's rulings in these decisions," Gordon said.

The court's decision is not expected to have any direct impact on the affirmative action requirements that apply to federal contractors because federal contractor obligations were not before the Supreme Court in these cases.

"Federal contractors are subject to very detailed affirmative action requirements that are codified through statutes, regulations and executive orders," Gordon added. "Nothing raised in oral arguments at the Supreme Court suggested that those affirmative obligations would change as a result of these two cases."

Rachel Bellow, co-founder of leadership-development company Bonfire in Chicago, believes that the implications of the SCOTUS ruling will be felt across all sectors, fields and institutions.

"The importance of this ruling has less to do with the legal outcomes than it does with how it advances our collective understanding of what diversity actually means, what the goals are of policies intended to increase diversity, and what strategies make sense to achieve those goals," she said.

How Employers Can Prepare for Potential Changes

Gordon explained that businesses should consider that potential changes to compliance requirements for company policies and programs—especially workplace DE&I initiatives—might be necessary because of the rulings on these two cases.

He said employers should assess employee data and workplace DE&I initiatives to determine whether current policies and programs could be interpreted as imposing quotas based on race or other non-mutable characteristics.

"If existing policies or programs could be interpreted as imposing such impermissible quotas, employers should then seek to revamp those policies or programs in ways that still advance workplace diversity without operating as a per se quota," Gordon noted.

Glenda Sims, chief information accessibility officer for software company Deque Systems in Herndon, Va., suggested that employers can prepare for potential federal changes to DE&I programs by:

• Hiring, developing and promoting based on business-related criteria rather than to meet a specific quota.
• Providing equal opportunity and access to jobs and promotions.
• Recognizing that a transparent and fair DE&I program can help discover and resolve unconscious bias that may exist in your organization.

"No matter which way this ruling goes, we must continue to guard against intentional or unconscious bias that results in illegal discrimination," Sims said. "I predict that employees and job applicants in protected classes will continue to seek to work for organizations with transparent and fair DE&I programs."

Bellow added that the most successful companies will "seize the opportunity to encourage and skillfully manage these conversations to enrich and enliven their organizational cultures."