Corporate DEI after Harvard/UNC decisions

On June 29, the U.S. Supreme Court ruled in two related cases—Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions Inc. v. University of North Carolina(UNC)—that the use of race in university admissions was unconstitutional under the “equal protection” clause of the 14th Amendment of the Constitution and under Title VI of the Civil Rights Act of 1964. Although the ruling expressly avoids reaching beyond college admissions to the commercial sector, it has triggered intense focus on employers’ use of affirmative action and corporate diversity, equity, inclusion, and accessibility (DEIA) programs.

Background

Unlike college admissions, employers have long been prohibited from using race to make employment decisions under Title VII of the Civil Rights Act of 1964, and those prohibitions extend to their DEIA programs as well. However, the Harvard and UNC ruling prompted immediate, partisan political responses, including a threatening letter to the Fortune 100 companies from 13 Republican attorneys general (AGs) and a rejoinder from 20 Democratic AGs supporting DEIA, as well as Senator Tom Cotton’s (R-AR) letter to the 50 largest law firms focusing on the litigation risks they and their clients face if DEIA programs are discriminatory.