On June 29, 2023, the United States Supreme Court overturned a decades-old precedent that held race-based affirmative action policies in higher education institutions were constitutional. However, in Students for Fair Admission, Inc. v. Harvard, the Court deviated from precedent and held colleges/universities can no longer use race as a factor in their college admissions. Although this ruling may not directly impact employment law, it inevitably will affect employers, via interpretations applicable to employers’ diversity, equity, and inclusion (DEI) programs.

In short, the Court held race-based admissions to increase educational diversity was not a compelling state interest and failed to satisfy strict scrutiny judicial review. Through its reasoning, the Court concluded that colleges/universities who used race as a factor in their admissions process ultimately negatively affected historically non-minority candidates by “discriminating against those racial groups that were not the beneficiaries of the race-based preference.” As we already are seeing, individuals who are not the beneficiaries of diverse-based programs such as corporate DEI programs may challenge those programs using the Court’s rationale.

If the Supreme Court’s opinion does not directly affect discrimination laws (Title VI and Title VII) as applied to employers, it may affect how workplace DEI programs are scrutinized. Some expect an increase in litigation targeting corporate DEI programs, and increase in “reverse discrimination” lawsuits. Employers should consider revisiting their DEI programs to ensure that quantitative diversity goals do not drive employment decisions at the expense of business-related criteria. As always, employee training and continuing education on anti-discrimination laws and policies is a great tool in preventing employment decisions based on protected characteristics.