ABSTRACT: Vice Chair Jocelyn Samuels of the Equal Employment Opportunity Commission recently spoke at the American Bar Association conference on Equal Employment Opportunity law, reiterating her stance that the U.S. Supreme Court’s recent decision that race-based university admissions policies are unconstitutional does not apply to the “vast majority” of private employers’ diversity, equity, and inclusion efforts. But various state attorneys general and legislators do not share that view, and the issue is far from resolved.

During a panel discussion at a recent American Bar Association Conference on Equal Employment Opportunity the Vice Chair took the position that the Supreme Court’s June 2023 decision that race-based university admission policies are unconstitutional does not apply to the “vast majority” of private employers’ diversity, equity and inclusion efforts.

The Vice Chair’s comments pertain to the recent United States Supreme Court decision (“SFFA decision”) in a pair of cases – Students for Fair Admission v. President & Fellows of Harvard and Students for Fair Admissions v. University of North Carolina – where the high court struck down the affirmative action admission policies at those universities, finding they violated the Equal Protection Clause of the 14th Amendment. Ever since that decision, there has been much speculation and discussion as to whether the employment practices of private businesses that focus on Diversity, Equity and Inclusion initiatives would face a similar fate if challenged. Threats, legislation, and lawsuits opposing those initiatives have followed across the nation. In her comments, Vice Chair Samuels cautioned employers against abandoning the DEI programs geared towards diversifying applicant pools and promoting equal employment opportunities in the workplace.

Students for Fair Admission v. Harvard/UNC and the Aftermath

In a 6-3 split decision, the United States Supreme Court ruled the colleges’ affirmative action policies that explicitly use race as a factor for admissions are unconstitutional and fail strict scrutiny.

While the SFFA decision does not mention or address employer’s DEI initiatives, Justice Gorsuch’s concurring opinion may have opened the door. In his concurrence, while analyzing the issue before the Court under Title VI, Justice Gorsuch directly quoted language from Title VII, noting Congress made it unlawful for employers to discriminate against any individual because of that individual’s race, color, religion, sex, or national origin.

Following the Supreme Court decision, on July 13, 2023, Attorney Generals from thirteen different states jointly sent letters to Fortune 100 companies to remind them of their obligations as an employer to refrain from discriminating on the basis of race, whether under the label of DEI or otherwise and threatening legal consequences for the continuation of such programs.

Shortly thereafter, on July 17, 2023, Arkansas Senator Tom Cotton sent letters to over 50 law firms, threatening investigation and litigation over DEI initiatives that include race-based hiring quotas and benchmarks asserting his belief that the Supreme Court’s decision extends to private employers.

Democratic Attorney Generals responded to the July 13th letter, reassuring companies that corporate DEI efforts are legal and asserting their position that the Supreme Court decision has no bearing on private employer hiring practices.

Additionally, in the wake of SFFA, ten states have enacted anti-DEI legislation, while another fourteen have proposed anti-DEI legislation.

EEOC’s Reaction to the Aftermath So Far

Addressing the strong and widely disparate reactions to the Supreme Court ruling, Vice Chair Samuels expressed her view that the discussions surrounding the expansion of the SFFA decision to employment programs are overblown, noting there is nothing about the SFFA decision that applies to the vast majority of DEI programs. Samuels highlighted that one of the EEOC’s stated priorities is to support employers in evaluating their DEI initiatives to make sure they are lawful. She also advised the EEOC has various resources available for employers that are aimed at identifying the types of DEI-initiatives the agency thinks remain lawful after SFFA.

What Next?

In the meantime, while we float in these murky waters and await further guidance, here are some things to consider regarding DEI initiatives in the workplace. While we will continue to monitor litigation challenging employment-based DEI initiatives in the wake of SFFA, so should you. Monitor how courts are applying the holdings of SFFA and interpreting anti-DEI legislation. Review current DEI-initiatives and consider amending policies that focus on quotas and benchmarks; instead, make the primary focus of the initiatives the removal of potential biases in recruiting and hiring decisions. Be mindful of your recruitment pool, explore all available avenues to identify qualified candidates, and consider your selection criteria. Draw upon the diversity you already have in the workplace to establish a diverse hiring team. Finally, use the resources suggested and offered by the EEOC, as you shape and amend your initiatives while you strive to meet your obligations to truly be an Equal Opportunity employer. Stay tuned to this evolving legal battlefield, which fight we anticipate is just getting started.

* Kaleb McKinnon, Law Clerk, assisted in the research and drafting of this post. McKinnon is a graduate of Drake University Law School and will be sitting for the Missouri Bar Exam in July 2024.