Only a few months after the U.S. Supreme Court issued its historic decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, which prohibited affirmative action in higher education, workplace inclusion, equity, and diversity (“IE&D”) programs are feeling the impact. Although the ruling is inapplicable to private employers, companies nonetheless are considering the decision as they strategize and fund their IE&D programs.
For example, according to a survey by the Association of Corporate Citizenship Professionals, almost one out of ten environmental, social, and governance (“ESG”) professionals have seen a decline in their company’s commitment to IE&D programs since the Supreme Court decision. About six out of ten ESG professionals are talking to outsiders differently about IE&D programs. Overall, 65% of ESG and IE&D workers are concerned about the future of IE&D at their companies.
A recent report by Paradigm showed similar results. That company found that the momentum fueling DEI efforts has slowed over the past year based on fatigue, economic uncertainty, and political issues, including the Supreme Court’s affirmative action decision. However, Paradigm also noted in its report that employee expectations and world events with DEI-related implications, such as the Israel-Hamas war and legislation and litigation concerning the LGBTQ+ community, have continued to grow. As a result, Paradigm concluded that DEI remains a relevant and appropriate consideration for companies.
Given the recent litigation, employers must be mindful of the legal landscape for IE&D programs, although these programs are not and should not be conflated with affirmative action programs. Most initiatives remain lawful as long as they comply with federal anti-discrimination statutes, such as Title VI and Title VII of the Civil Rights Act of 1964. However, as race-based considerations face more scrutiny following the Supreme Court decision, private companies may adopt more comprehensive programs that consider other diversity factors beyond race.
The New York Bar Association, the largest voluntary bar association in the country, launched a 50-member Task Force on Advancing Diversity. The outcome of that task force was to issue a 93-page report containing recommendations for colleges and corporations to continue pursuing diversity initiatives within the legal parameters of the Supreme Court decision. In that report, one of the recommendations is for these entities to continue to consider race in the context of how individuals are impacted by it. For example, a student might submit a college admissions essay explaining how race created challenges for them in their individual lives or how a role model achieved success in overcoming racial challenges. The Supreme Court’s decision would not prohibit the college from admitting students based on their diverse viewpoints, which the college believes would further its mission.
Nonetheless, anti-affirmative action crusader Edward Blum, who has filed dozens of lawsuits challenging racial preferences through his organization, the American Alliance for Equal Rights, recently filed a lawsuit against the Fearless Fund. This Atlanta-based organization provides funding for Black female entrepreneurs.
Blum also filed suit against two law firms, Morrison Foerster and Perkins Cole, for sponsoring fellowships based on diverse characteristics of candidates. In response, Morrison Foerster expanded its fellowship program to students of all races.
Similarly, America Legal First, a conservative group operated by Stephen Miller and other former Trump administration officials, has publicly declared all DEI programs to be illegal. America Legal First has filed dozens of complaints against Starbucks, McDonald’s, and Morgan Stanley through the U.S. Equal Employment Opportunity Commission (“EEOC”).
