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SCOTUS Decision in Harvard Affirmative Action Case has Broader Implications for Employers

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, SCOTUS struck down affirmative action admissions policies in higher education. While this was focused on university admissions policies, there were notable comparisons to Title VII in the concurrence that suggest the same principles could be applied to the employment market and, in particular, DEI (diversity, equity, and inclusion) Initiatives. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 143 S. Ct. 2141, 2209-16 (2023) (showing concurrence explaining comparison to the applicability of Title VII). The comparison is drawn from the majority opinion’s footnote which noted that violating the Equal Protection Clause also violates Title VI. Under Title VI of the Civil Rights Act of 1964, any program or activity that receives federal funds may not discriminate based on race, color, or national origin. The concurrence then noted that Title VI logically must have the same Equal Protection standard as Title VII, which prohibits an employer from discriminating against any individual based on race, color, religion, sex, or national origin. SCOTUS recognizes that in an employment discrimination context under Title VII, courts only require a minimal prima facie showing by a plaintiff before shifting the burden to the employer. Both Title VI and Title VII codify a rule of “individual equality, without regard to race.” Students, 143 S. Ct. at 2216.

The opinion and its comparison to Title VII have been noticed by the employment legal community as well. The EEOC, which historically has championed DEI programs, commented that this decision is “a problem.” Large, employer-side firms have put out advisories in recent months as well. Notably, some have suggested the DEI and similar programs that implicate employment actions can expect more lawsuits and are likely to be found unlawful if they (1) require diverse interview slates; (2) limit opportunities to specific underrepresented; (3) set goals and timelines for representation within specific roles; (4) incentivize decision makers to base decision on DEI or affirmative action results; or (5) require diversity on boards of directors. Further, it is strongly recommended that employers focus on diversity in ways other than race, such as socioeconomic background, education, gender, and disability.

Harvard law professor Noah Feldman strongly encourages business clients to remove race from DEI and hiring decisions based on Students. In his view, the ruling makes racial diversity no longer a permissible justification in hiring decisions.  He stated, “practically no lawyer advising a client today could assure the client that it would still be lawful to consider race in hiring.” For businesses, that looks like the way things are going with regard to DEI. It logically follows that employers can’t develop and retain employees in exclusionary development programs based on race either.

While the EEOC initially said the Students ruling doesn’t impact the lawfulness of corporate DEI programs, a more recent statement was issued which highlights two Title VII cases on the Court’s next term that will directly scrutinize DEI programs. The EEOC recognized that while Title VII currently bars discrimination in all actions impacting terms, conditions, and privileges of employment, a more expansive reading could bar several race-conscious corporate programs such as those providing race-restricted access to mentorship or training opportunities. It is strongly suggested that to protect against legal challenges, employers should review their DEI programs, and do not rely on race as a factor.

Accordingly, the SCOTUS decision in Students does not make all DEI programs unlawful.  However, it is clear that the Court will likely not tolerate race-based programs. Employer programs must be crafted without resorting to race-based stereotypes of diversity. Declining to train, mentor, or promote an experienced employee of one race in favor of a less experienced employee of another race is plainly at odds with the SCOTUS view on this issue. If an employer’s DEI program still has a race-based component, the employer can expect lawsuits that will be viewed favorably by SCOTUS.

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