The decision

Chief Justice John Roberts, who wrote the majority decision, stated that while college admissions programs can consider race to allow an applicant to explain how their race affected their life, for example in an essay discussing the applicant’s character or unique abilities, admissions programs may never use race as a stereotype or negative and must — at some point — end. Chief Justice Roberts stated that the admissions programs in question lacked sufficiently measurable objectives, employed racial categories that were imprecise and overbroad, relied on racial stereotypes and did not have an end point. However, citing potentially distinct interests, the Court did not strike down race-based admissions programs currently used by military academies.

Justice Sonia Sotomayor dissented in an opinion that was joined by Justices Elena Kagan and Ketanji Brown Jackson. Justice Sotomayor stated that the court overruled decades of precedent and “imposes a superficial rule of race blindness on the nation.” Sotomayor wrote that the limited use of race by colleges and universities has “helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses.”

Reactions to the decision

The publication of the decision brought an onslaught of reactions from colleges and universities, private employers and the federal government. U.S. EEOC Chair Charlotte A. Burrows noted that hampering the efforts of some colleges and universities to ensure diverse student bodies is problematic. Burrows wrote that the decision is:

[A] problem for our economy because businesses often rely on colleges and universities to provide a diverse pipeline of talent for recruitment and hiring. Diversity helps companies attract top talent, sparks innovation, improves employee satisfaction, and enables companies to better serve their customers.

EEOC Chair Burrows noted in her statement that it remains lawful for employers to implement diversity, equity and inclusion (DEI) and accessibility programs.

While DEI programs were not challenged in the lawsuit, some state laws and regulations seek to limit employer DEI programs and communications. Employers should work with legal counsel to determine whether their programs are affected.

Impact on employers

The Supreme Court’s ruling is not directly applicable to most employers for a number of reasons, including the fact that the legal underpinning for the challenge was different from laws applicable to private sector employers, such as Title VII of the Civil Rights Act, and the type of admissions programs that were challenged are different from programs used in employment. However, the decision may serve as the catalyst for challenges to affirmative action programs in the workplace in the future.

Additionally, some employers have expressed concerns about workplace diversity, equity, inclusion and accessibility programs and how those programs should be structured to avoid challenges. Moreover, employers may also be concerned about the impact of the decision on workforce talent pools.

While employers should consult with their professional advisors and legal counsel concerning specific issues, they can consider a range of options to assure that their diversity initiatives meet the company’s business operations imperatives. This can include actions such as:

• Examine DEI programs through both the company’s goals and employee’s experience to ensure that the program is meeting the identified needs.
• Review employee benefit programs with an eye toward benefits equity.
• Build a more inclusive culture for employees, including business resource groups.
• Ensure the special needs of diverse groups are considered as part of workplace health and safety programs.
• Establish mentorship, scholarship and networking programs.

Many organizations consider diversity initiatives to be a core part of their business growth strategy. Employers should watch the public debate on the decision and assess their own programs for compliance and for the impact on plans for future initiatives.