What does the new affirmative action ruling mean for DEI programs?

Front and center among a small slew of bombshell U.S. Supreme Court holdings that emerged last week was this one: Race-based admissions systems in higher education are unconstitutional – and thus prohibited.

“Eliminating racial discrimination means eliminating all of it,” the Court’s majority memorably pronounced, while finding that both Harvard College and the University of North Carolina used programs that unlawfully considered race when deciding which candidates to accept for admission.

A strong dissent in the case foretold the divided public response to the ruling that followed. As expected, some praised the decision as a much-needed return to a truly merit-based system, while others criticized it as wrongfully impeding critically important diversity efforts.

The decision also raised a question for employers: What – if anything – does it mean for their DEI initiatives?

What the Court said

The answer to that question begins with a clear understanding of the Court’s majority holding.

Precisely, the Court decided that the admissions programs violated the Equal Protection Clause, whose core purpose is to ban governmentally imposed race discrimination.

Although the Court has previously allowed race-based government action to remediate prior unlawful bias, race-based admissions have been allowed “only within the confines of narrow restrictions,” the Court explained.

Specifically, the Court said, such programs must pass a legal test known as “strict scrutiny”; they must not use race as a stereotype or negative; and they must have an endpoint in sight.

The programs in this case violated the Equal Protection Clause because they did not satisfy those requirements, the Court decided.

Education vs. employment

In education, the limited use of race to advance student body diversity has a history of being legally acceptable – and accepted.

The same is not true with respect to employment. Instead, Title VII – which played no part in the high Court’s new ruling – flatly bans employment discrimination based on race.

That was true before the new ruling was issued, and it remains true after it.

Remember too that “affirmative action” in the higher education context means something different than it means in the context of employment. Whereas race has enjoyed a place as a legitimate specific factor in admissions programs, there has never been a place for it when it comes to making employment decisions.

Finally, DEI efforts in the workplace involve more than just race. Instead, these programs typically encompass other classifications as well, such as gender and sexual orientation.

So if we’re essentially talking about two different things, then the ruling will not impact employers’ DEI programs, right?

Not so fast.

It is sometimes said that perception is reality. And if the perception of employers here is that this ruling in fact limits their ability to implement DEI programs, then it may have a chilling effect on those programs. Some employers may restrict or perhaps even eliminate them based on the fear of litigation.

Is that fear justified? That remains to be seen. Although the ruling did not involve employment, it is not a stretch to imagine that its ideological underpinnings may nonetheless serve to embolden attacks on workplace diversity programs, including via litigation.

For workplace DEI programs, what the new affirmative action ruling portends is more important than what it says.

So what’s the bottom line?

First, ensure that diversity efforts do not include racial preferences. As noted, when it comes to employment, such preferences were not permissible then and are not permissible now.

Next, remember that a DEI program that was legal before this new ruling is legal after it. Employers remain free to implement programs that are designed to encourage a diverse range of candidates to apply for open positions. That is much different from extending a blatant racial preference, which is prohibited.

Also, make sure your DEI program uses race-neutral factors to attract a diverse range of job candidates, such as socioeconomic status and geographic location.

Finally, make sure managers understand the program’s specific contours and objectives. A DEI program in practice must accurately reflect what it is in form.