On June 29, 2023, the United States Supreme Court issued its ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (along with Students for Fair Admissions, Inc. v. the University of North Carolina, et al.), bringing an end to a near decade long legal battle regarding affirmative action at universities. The Court struck down affirmative action policies that provide a “plus” or a “tip” to applicants based on race, holding instead that the Constitution and Title VI of the Civil Rights Act (applicable to federally-funded programs) require colorblindness. 

As it relates to private-sector employers, the decision is only indirectly applicable because such employers are generally not subject to the Constitution’s equal protection clause and are governed by Title VII of the Civil Rights Act, rather than Title VI.  Generally speaking, Title VII case law does not permit the use of race in employment decision-making in the same fashion as universities have used race in admissions decisions.  However, the decision’s strong language regarding the application of Title VI’s language – which is nearly identical to Title VII’s – to affirmative action programs that arguably seek to benefit certain minority groups, will likely bleed over into Title VII case law.

Despite the decision, however, affirmative action is not banned, so long as it is not a quota or determining factor.  Employers may continue to focus their affirmative action efforts on increasing the pipeline of qualified applicants from underrepresented groups.  Employers are not required to abandon their ongoing DEI efforts, but should be mindful of the potential for discrimination claims (which may include reverse discrimination claims). It would be prudent to review your company’s DEI commitments and initiatives, along with hiring policies, to ensure they are encouraging diversity while not crossing the line into discrimination.  This is particularly true given the publicity the Supreme Court’s decision has generated.