SCOTUS’s affirmative action decision: what it is and isn’t for employers

Posted July 7, 2023


The U.S. Supreme Court may have stricken a blow to affirmative action in higher education this week, but alarmist rhetoric about looming legal threats to workplace diversity are overblown. As Verse Legal Attorney and Founder Bonnie Levine told Quartz recently, employee activism and social consciousness are not going away, regardless of the Supreme Court’s decision. Companies and other organizations that “have taken a bold moral stance” on principles and goals such as diversity, equity, and inclusion should seriously consider the very real legal and reputational risks of backing away from that stance.

On June 29, the court handed down a single 6-3 opinion, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, covering two consolidated cases brought by the same plaintiff, Students for Fair Admissions (“SFFA”). SFFA is a non-profit membership group led by conservative activist Edward Blum. Its lawsuits against Harvard and UNC challenged the universities’ consideration of race among other factors in their admissions processes, focusing on the way it impacted Asian students (Blum is white). As long expected, the court held that two undergraduate admissions processes violated the Equal Protection Clause of the Fourteenth Amendment in the way they considered race. But beyond that, it didn’t give much practical guidance to higher educational institutions.

And importantly, it is devoid of any suggestion that its legal reasoning would change equal opportunity standards already in place for private employers. To be sure, the decision is heavy with “Constitution as colorblind” subtext, and its interpretation of the landmark Brown v. Board of Education decision is very concerning, with some pointing out that the SFFA decision seems to threaten de facto segregation in higher education. Right-wing political forces have attempted to leverage the decision to pressure employers, arguing that workplace DEI efforts are contrary to the “principles” articulated in the SFFA decision.

But “principles” is about the best they can do, because there is no legal reasoning in the SFFA decision that applies to private employers, even by analogy. Indeed, the court might have included language to open that door, and did not. That is not to say that no legal threats to workplace DEI exist at all: to the contrary, we’re likely to see state legislatures empowered by these decisions to enact more “anti-woke” legislation like the recently-struck-down Florida law. But headlines stoking fear in employers that “the workplace is next” as a result of this legal ruling are misplaced.

Decisions criticized as ideological, procedurally unsound

In considering how the affirmative-action ruling might or might not bleed over into other contexts, employers should be aware of some criticisms of the decision. As some legal scholars and civil-rights advocates have noted, the SFFA decision and another recent opinion, 303 Creative LLC v. Elenis, push the boundaries of the Court’s constitutional authority. The constitution proscribes a separation of powers that limits the judicial role to deciding a “case or controversy.” Absent a genuine dispute and showing of harm, issues of public policy are the province of the other two branches of government, primarily the legislature comprised of publicly-elected officials.

For example, handing down a single opinion for the two affirmative action decisions suggests that the Court was less interested in deciding cases and more in deciding an issue as part of a long-term political project, according to Damon Hewitt, who spoke on the Affirmative Action Decision Day Roundtable hosted by the African American Policy Forum on June 29. The decision is an example of the SCOTUS conservative majority’s “rabid pursuit of race blindness,” said Hewitt, who is president and executive director of the Lawyers’ Committee for Civil Rights Under Law. This should sound familiar to anyone familiar with the “anti-woke” measures that conservative policymakers and strategists have spent years refining. 

The plaintiffs in the Harvard and UNC cases did not present any testimony from Asian-American students who claimed to have experienced racial discrimination in the college admissions process, said Janelle Wong, director of Asian American Studies at the University of Maryland, during the roundtable. Even so, the court’s opinion chose to focus on the hypothetical possibility of such discrimination rather than on the actual systemic racism and discriminatory access to education that have been actively harming Black children and adults for centuries.

Perhaps even more unusual was the situation in 303 Creative LLC v. Elenis, issued June 30, 2023. Here, the Court held that a private company may refuse to design a gay couple’s wedding website based on a freedom-of-speech argument. The problem? No one asked this particular web company to do this. And the individual identified as having submitted a web inquiry turned out to be not gay, already married, and a web designer himself.

In combination, these two controversial decisions reflect ideology more so than the rule of law, continuing a trend from recent decisions about politicized issues. From some legal scholars’ perspectives, these decisions feature inconsistent legal analysis and “back in” to the majority’s desired result. Increasingly, this viewpoint has gained traction, and threatens to undermine the integrity of the Supreme Court as an institution.

Employers: Tune out the noise, stay the course

Employers who overreact to the affirmative action ruling by preemptively scaling back DEI efforts would likewise be making ideological statements, not furthering legal compliance.

So what should employers do now?

  • Nothing. It is not strictly necessary for an employer to “do” anything in response to the decision; the legal standard has not changed. Policies and procedures are not under any new legal threats.
  • Foster healthy Legal-DEI partnerships. As political slant threatens to cloud legal-risk analysis even more, constructive partnerships between organizational functions responsible for compliance and equity are even more imperative.
  • Review job descriptions and recruiting practices. The impact on higher education will eventually be felt in recruitment; rethink recruiting strategies accordingly. Don’t draft job descriptions with overly selective criteria (including but not limited to degree requirements) listed as “qualifications,” for example, unless absolutely necessary.
  • Don’t ditch DEI, invest in making it great. Performative, diversity-washed initiatives often fail, or cause harm. Empowered, authentic DEI is best, including from a legal perspective. What that means depends on many factors.
  • Anti-retaliation policies / training. EEOC data shows that retaliation claims are on the rise, but many workforces suffer from a lack of nuanced understanding of the legal framework. The increased popularity of DEI initiatives and discussion about discrimination in the workplace means that employees may be more likely to engage in protected activity, and employers need to be prepared to respond properly.
  • Listen first, then speak (if appropriate). A corporate values statement (internal or external) is often considered at moments like these, and may be appropriate if not too rushed or reactionary. The decision will depend on the specific context of an organization. Equity means listening to the views of people impacted before making a decision.

The political struggle over identity in the workplace is far from over. But corporate social consciousness is here to stay. Just like the Supreme Court itself, employers whose DEI efforts blow with the political winds will undermine their own credibility, making their ultimate objectives even more difficult to achieve. Employers are best served to proceed accordingly.

Additional Resources

The Workforce Mobility Act of 2023
Introduction The landscape of employment law is ever-evolving. Some legislative proposals threaten to erode workplace equity, but others reflect a broader societal ...
Global diversity equity and inclusion (DEI) challenges
Diversity equity and inclusion (DEI) poses unique legal and practical challenges for employers with multicountry operations. To develop an effective global diversity ...
The corporate DEI cutbacks narrative
Verse Legal's Bonnie Levine recently spoke to NPR about the confusing legal landscape surrounding corporate DEI initiatives, which are reportedly facing "cutbacks." ...