New challenges to DEI after SFFA

The diversity, equity, and inclusion (DEI) and affirmative action programs used by many employers are facing challenges that have escalated following the U.S. Supreme Court ruling on June 29, 2023, in the Harvard College and University of North Carolina (UNC) cases, which held that the use of race in university admissions is unconstitutional under the Equal Protection Clause of the 14th Amendment of the U.S. Constitution and violated Title VI of the Civil Rights Act of 1964.

Legal challenges to DEI programs

The new challenges to DEI programs are primarily based on federal antidiscrimination laws. Title VII of the 1964 Civil Rights Act and Executive Order 11246 (which governs federal contractors’ affirmative action obligations) prohibit employment discrimination based on race and sex, among other categories. The Supreme Court has long held that quotas and/or employment decisions based solely on an individual’s protected status are unlawful. Title VII has long recognized that whites can claim race discrimination based on the more favorable treatment of non-whites who are similarly situated.

Importantly for evaluating DEI programs, Title VII doesn’t prohibit employers from developing and implementing diversity initiatives that are designed to provide a fair opportunity for all individuals, regardless of their race or gender, as long as the employer doesn’t engage in race- or gender- based decision-making. Therefore, Title VII recognizes that, if properly administered, race and gender can be factors to expand the applicant pools, but not for the final selection or decision making.