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Is DEI dead after the Supreme Court’s decision on Affirmative Action? No!

As the backlash against DEI is mounting, you may be questioning what you can and should be doing with your DEI work. Leaders became overly cautious after the Supreme Court's decision on Affirmative Action. Raben’s Karen Driscoll and Stephanie Ramírez have written this resource to help you understand what’s generally in and out after the decision. They also have recommendations for continuing your DEI work in this climate and resources that detail the latest updates on cases, media, and reports.

Karen Driscoll, and Stephanie Ramírez

· May 23, 2024

Portrait of black business woman and black business man standing with arms crossed.

Is DEI dead after the Supreme Court’s decision on Affirmative Action? No! (PDF)

Many companies are reevaluating their diversity, equity, and inclusion (DEI) strategies since the Supreme Court’s Affirmative Action decision in June 2023. Many private workplaces have changed how they calculate their risks related to DEI even if not legally valid.

As the backlash against DEI is mounting, you may be questioning what you can and should be doing with your DEI work. When a decision like this is made at the highest court, leaders become overly cautious, but you do not have to “throw the baby out with the bathwater.” We have provided this resource to help you understand what’s generally in and out after the decision.

What did the Supreme Court decision do?

The ruling overturned legal precedent and effectively ended the use of affirmative action in college admissions. The Court's decision found that the admissions programs at Harvard, a private institution, and the University of North Carolina, a public institution, violated the equal protection clause of the 14th Amendment.

The Court’s decision was about affirmative action in higher-education admissions. The Court held that affirmative action violates the Equal Protection Clause in the US Constitution (and, by extension, Title VI of the Civil Rights Act of 1964).

What remains in effect after the Supreme Court’s decision?

The Court’s decision was not about affirmative action in private workplaces. According to NYU legal experts Kenji Yoshino and David Glasgow, the Court “did not hold that affirmative action violates Title VII of the Civil Rights Act of 1964—the main statute governing the employment relationship. To end workplace affirmative action, the Court would need to overrule two of its longstanding precedents—United Steelworkers v. Weber (1979) and Johnson v. Transportation Agency (1987)—which authorized affirmative action under Title VII. The ruling did not extend to hiring practices.”

Is affirmative action legal under Title VII?

Affirmative action under Title VII is legal under very specific circumstances. Employers must admit to a problem and use affirmative action for a remedial purpose. The American Bar Association states, “an affirmative action plan must be justified by a ‘manifest imbalance’ reflecting an underrepresentation of minorities or women in ‘traditionally segregated job categories,’ and any race- or gender-based preference in the plan must be properly tailored to cure the disparity without unnecessarily trammeling the interests of non-minorities or males.

"In order for employers to engage in race- or gender-conscious employment decisions, they must (i) have a written plan; (ii) engage in reasonable self-analysis of the relevant employment practice (e.g., hiring or promotion); (iii) have reasonable basis to conclude from the self-analysis that the relevant employment practice has had an adverse effect on ‘previously excluded groups’ or groups whose opportunities have been ‘artificially limited’; (iv) include reasonable action in the plan that is narrowly tailored to solve the problem identified without placing unnecessary restrictions on the workforce as a whole; and (v) maintain the plan no longer than necessary to achieve the plan’s objective.”

How does the Court’s decision impact Diversity, Equity, and Inclusion (DEI) programs in private workplaces?

This decision did not materially change DEI programs in private workplaces. DEI programs are still legal as long as they comply with Title VII and other non-discriminatory laws. According to Yoshino and Glasgow, “most DEI initiatives in the workplace are not affirmative action in the way it is addressed in this decision.”

Most DEI initiatives involve broader efforts to expand a more diverse, inclusive workplace while ensuring everyone is heard and valued. DEI programs should focus on expanding opportunities to all as opposed to decision-making based on protected classes. Embracing DEI is essential to creating a workplace that thrives on the collective strength of a company’s staff. If you have specific questions about your DEI programs and risks, seek counsel!

Recommendations:

The following recommendations are based on the experience and expertise of Raben’s team. These recommendations are specific to private workplaces and do not include guidance for higher education.