In June 2023, the United States Supreme Court issued rulings in two related cases: Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and SFFA v. University of North Carolina, Nos. 20-1199 & 21-707, striking down affirmative action in college admissions and concluding that neither Harvard nor UNC offered compelling enough justifications for their racial admission preferences. While these decisions are limited to higher education, they have implications for DEI initiatives in the workplace. Indeed, the activist who founded Students for Fair Admissions (“SFFA”) and others have begun targeting private entities that have/had race-related requirements for employment.

Shortly after the decision was issued, Charlotte A. Burrows, Chair of the Equal Employment Opportunity Commission (“EEOC”), issued a press release stating that the SFFA decision “does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background. It remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”

With the Supreme Court’s decision invalidating affirmative action, activists targeting private employers, and the Chair of the EEOC’s affirmation of DEI programs somewhat in conflict with one another, Spilman recommends employers take the following steps:

1. Review your DEI and affirmative action plans and policies. If you have decided to target a specific type of applicant, document the specific justification for doing so, and have it tethered to your business needs.
2. Maintain compliance with all anti-discrimination laws. It will never be a violation of law to take steps to prevent harassment and/or discrimination against protected classes under the law.
3. Continue fostering an inclusive and welcoming work environment to ensure that all employees feel welcomed and valued.
4. Conduct workplace training, paying particular attention to ensuring managers know how to identify and prevent workplace harassment and discrimination. If employees know what is expected of them concerning how to treat one another, it will help avoid issues and foster an inclusive work environment.

With the recent attention paid to workplace DEI initiatives, we do not expect this will be the last you hear of this topic. Spilman will keep you updated on any developments in this space.