Supreme Court’s affirmative action decision could put DEI programs at risk

The U.S. Supreme Court ruled on June 29 that the way Harvard and the University of North Carolina used race as an admissions factor to create a diverse student body is unconstitutional and violates the Constitution’s 14th Amendment. The decision in Students for Fair Admissions v. President and Fellows of Harvard College could affect employers that rely on diversity, equity, and inclusion programs to diversify their workforces.

The court said both universities’ affirmative action policies lacked sufficient focus and measurable objectives warranting the use of race as admissions criteria and involved their own form of racial stereotyping to make admissions decisions. The court said the universities’ policies had succeeded in creating diverse student bodies, but did so by screening out other qualified applicants on the basis of race.

For employers committed to diversifying their workplaces, the case offers lessons to avoid similar legal challenges. Already, groups opposed to affirmative action are pushing legal arguments similar to the one that prevailed in Students for Fair Admissions—including filing EEOC complaints against employers with DEI programs.

Employers with DEI and recruitment initiatives that resemble Harvard and UNC’s may want to consider adding specific rationales for their programs.

• Example: Tying cultivation of a more diverse workforce to achievement of business goals such as reaching specific customer demographics.
• Another tactic: Expanding recruiting efforts of all kinds to attract a broader demographic range of qualified candidates.
  

Final note: For employers, the Supreme Court’s ruling is ill timed, considering the tight labor market and current workplace demographics. It could depress the number of qualified job applicants who belong to underrepresented groups just as an older, less-diverse cohort of employees is retiring.