Last summer, in a pair of cases- Students for Fair Admissions v. President & Fellows of Harvard and Students for Fair Admissions v. University of North Carolina– the United States Supreme Court held that race-conscious university admissions policies are unconstitutional. Only days after the Students for Fair Admissions decision, attorneys general from 13 states issued a cease-and-desist letter to the management teams of all Fortune 100 companies, telling them to comply with race-neutral principles in their employment and contracting practices.

Although neither case involved employment law, the Court’s decision and the subsequent legal challenges of employers’ DEI efforts, has left us all to wonder: Are employer DEI programs unconstitutional, too?

Recently, the Equal Employment Opportunity Commission voiced a resounding “no.” When speaking as part of an equal employment opportunity law panel, EEOC Vice Chair Jocelyn Samuels said that the Students for Fair Admissions decisions does not apply to the “vast majority” of private employers’ diversity, equity and inclusion efforts for several reasons, including:

• The Court’s ruling did not involve Title VII of the Civil Rights Act;
• The cases arose in the education context (not the employment context); and
• The cases involved decisions where race was being explicitly considered by admissions offices to determine whether to accept individual students

In fact, Vice Chair Samuels said, one of the EEOC’s priorities is to support employers in “carefully evaluating their DEI initiatives to ensure they are implemented in lawful way.” Vice Chair Samuels’ statement is consistent with a statement issued by EEOC Chair Charlotte Burrows’ following the Students for Fair Admissions decisions (here).

Vice Chair Samuels added that the EEOC has numerous resources available that identify the kinds of initiatives that the EEOC believes remain lawful. Once such resource is related to a joint initiative between the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) called “HIRE” (Hiring Initiative to Reimagine Equity; information here).

What can employers do today to evaluate existing DEI programs? Among other things, employers can review their recruiting efforts with a focus on how to expand the applicant pool; provide hiring managers training so they understand how to avoid improper considerations when hiring and promoting; provide all employees DEI training (consistent with applicable state law requirements or restrictions, if any) with a focus on topics such as the benefits of diversity and inclusion in the workplace; and implementing or further developing mentorship and affinity resource groups.

The legal landscape for DEI programs remains dynamic and will undoubtedly be subject to challenge. Employers should continue to stay abreast of legal developments and trends.

Questions?

Contact the author Sandy Andre.