However, on the heels of this decision, thirteen State Attorneys General sent out letters to private employers, identifying the legal risk those employers may face should they consider race in employment decisions. However, the letters point to actions that most employers don’t actually engage in. For instance, the Attorneys General highlight concerns over hiring someone solely because of his or her race; in contrast, private employer DEI programs generally focus on fostering an inclusive environment for all employees, regardless of race.  And it may be a bit overbroad to state that an employer’s consideration of race is per se unconstitutional. After all, the majority opinion in SFFA unequivocally stated that “[N]othing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

Notwithstanding these letters, our assessment is that the SFFA decision does not change the law for private employers in this area. Title VII has always prohibited employers from making employment decisions based on any protected characteristic, including race. This has not changed. Importantly, private employers can continue to seek to increase diversity in their workforce and set aspirational goals with respect to diversity, equity, and inclusion.

Some examples of best practices to incorporate in DEI programs include creating mentorship and pipeline programs open to all employees, focusing on removing barriers in hiring practices generally, and taking complaints of discrimination seriously. Practices to avoid include setting race-based quotas or making decisions solely based on race.

For more best practices and in-depth analysis of Title VII, DEI programs, and the SFFA decision, click here. 

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