Why the Affirmative Action Case Does not Apply to the Workplace
On June 29, 2023, the U.S. Supreme Court ruled in the Students for Fair Admissions case (“SFFA”) that colleges and universities can no longer make admissions decisions based in part on race. So much for educational affirmative action, and at first blush some may think this case means diversity, equity, and inclusion (“DEI”) initiatives by private companies also must be dead. Not so fast, at least for now. Workplace affirmative action is very different from college admission affirmative action. The racial preferences used by Harvard University and the University of North Carolina (“UNC”), the two defendants in SFFA, would be unambiguous violations of Title VII of the Civil Rights Act of 1964, which forbids any employment discrimination based on race, color, religion, sex, or national origin.
So, even though some people refer to DEI as affirmative action, it never could be achieved through explicit SFFA-style preferences. Diversity as a goal is permissible, but should be pursued through things like targeted recruiting and training about bias. Explicitly requiring that new hires include a set percentage of minority candidates, or (even worse) firing white or male employees to make way for minority or female employees, would be illegal workplace discrimination. So too would making certain training or opportunities available only to employees in protected categories.
Why the Case Nonetheless Raises Issues about DEI Initiatives
Will the SFFA decision nonetheless make it harder for employers to achieve DEI objectives, and will it spawn litigation by members of traditionally favored groups (white males, in particular) who believe they were passed over in favor of a less qualified minority? The case will likely embolden anti-affirmative action groups to litigate whether DEI goals seem to suggest preferential hiring, and also likely will lead more individuals to pursue so-called reverse discrimination cases. Moreover, given the predilections of the current Supreme Court, we can expect some limitations on the scope of DEI programs.
That said, the Court did at least hint even in the educational context that racial preferences may sometimes be justified. A footnote to Chief Justice Roberts’ majority opinion made clear that it did not address “the question of whether race-based admissions programs further compelling interests at our Nation’s military academies,” and suggested an understanding that those interests might present distinct issues. Would the Court evaluate DEI for companies that serve minority communities differently from other DEI programs?
At this point we don’t know. Nor do we know the extent to which the Court might accept cases that seek to limit DEI. Stay tuned for what comes next.