Will the Harvard Affirmative Action Case Impact Company DEI Programs? - American Society of Employers - Anthony Kaylin

EverythingPeople this week!

EverythingPeople gives valuable insight into the developments both inside and outside the HR position.

Latest Articles

Will the Harvard Affirmative Action Case Impact Company DEI Programs?

Affirmative ActionWhether or not the Harvard affirmative action case impacts corporate DEI programs is unlikely to be known until the decision comes down in June.  The issue with the Harvard case before the Supreme Court is about proportional representation in student admissions under the guise of diversity for the student body.  The Court is likely to rule against Harvard and the University of North Carolina. They are also likely to overturn the University of Michigan law school case that was decided in 2003 that allowed for diversity in the admissions process but gave a set period of 25 years thinking it will not be needed by then.

So why should DEI programs be worried? Many of them unfortunately are following the schools’ approach to “diversity” using representational quotas for internal and published targets.  They implemented programs without discussing it first with compliance; therefore, putting the employer at risk for discrimination claims.  Under Title VII, all races are protected.  Lawsuits are starting to be filed for discrimination based on these DEI programs.

On the other side of the coin, there have been a growing number of lawsuits accusing major companies that prioritized DEI initiatives in recent years of falling short on their promises.  Almost 40 suits have been filed against companies including Delta Air Lines Inc. and Wells Fargo & Co. in the last three years because of allegedly misleading statements about diversity and equity commitments, according to an analysis of Bloomberg Law data.

A common theme among these lawsuits is that companies failed to live up to their DEI aspirations or implemented goals that allegedly fell outside a company’s mission to return value to shareholders.   The reason for this is the DEI bandwagon.  Many employers jumped in without clear guidance and constraints thinking they were doing the right thing.  They had policies to address racial, ethnic, and gender inequality among their employee ranks starting with all the social issues arising in 2020 from George Floyd and more.  These policies have been cited in numerous employee and investor suits expecting greater implementation and impact on the organization.

The Supreme Court asked the lawyers for the schools during oral arguments if they wanted to limit the ruling to a Title VI case, which only deals with university claims of discrimination, or a constitutional question.  They answered constitutional.  Now with that response, it opened the door for the Supreme Court in this current makeup to look more broadly at affirmative action and diversity.

To start, since the cases are cloaked under the umbrella of affirmative action, the court could rule that all voluntary affirmative action is illegal under the law except in certain circumstances.  The law is clear when affirmative action is conducted voluntarily – cannot do it.  Supreme Court has precedent for this approach, so it won’t be far-reaching in the decision.  However, it could impact non-school affirmative action such as under Executive Order 11246 for federal contractors and make it illegal also.  Again, no one knows until a decision is made. 

Further, by outlawing representational diversity under the diversity umbrella, it will lead many organizations who have implemented goals and programs under the DEI banner to a great risk of lawsuits, thus pushing them to dismantle the DEI initiatives.  If it’s found that the organizations were doing something illegal, there is a very real risk that the insurance policies will not cover any claims against the organization, so all settlements will be out of pocket.  The dominoes will fall.

With a decision against university diversity initiatives possibly having a broad impact, it could lead to more states passing laws one way or another to impact diversity initiatives by employers.  For federal contractors, there only needs to be one contractor who files a lawsuit that could go up to the Supreme Court for their take.  Therefore, the future is cloudy for DEI and affirmative action down the road.


Source:  Bloomberg Law 4/17/23, Morrison & Foerster LLP 4/10/23


Filter by Authors

Position your organization to THRIVE.

Become a Member Today