In mid-2023, the US Supreme Court made it unlawful for universities and colleges to consider a college applicant’s race in college admissions decisions designed to achieve the objective of a more diverse student body. Although the decision does not address corporate diversity, equity, and inclusion (DEI) efforts in the workplace, the upshot of the Court’s ruling could have implications for such requirements, including the Equal Employment Opportunity Commission (EEOC). The Supreme Court’s decision is likely to result in increased litigation over corporate race-conscious programs under workplace antidiscrimination laws, including under Title VII.

The EEOC regulates private employers seeking to create a Title VII-compliant affirmative action plan. To be lawful, the plan or program must be written, dated and include: 1) a reasonable self-analysis of the employer’s relevant employment practices; 2) a reasonable basis to conclude that an employment practice has or will adversely affect a group previously denied or limited employment or promotional opportunities, fail to correct prior discrimination, or result in disparate treatment; and 3) a narrowly tailored and reasonable action to address the problem identified.

Given the specificity of these requirements, many DEI initiatives may not currently meet the EEOC’s guidelines. Therefore, DEI initiatives that favor a particular race or gender or treat race or gender as a “plus” factor in employment decisions come with legal risk. This need not be a death knell for efforts to combat historic discrimination or inequality outside of formal affirmative action plans, but employers should be cautious when structuring and documenting such efforts moving forward.

Webinar Agenda

Although corporate diversity recruitment efforts can focus on underrepresented minority groups or implement policies to increase diverse applicants in the hiring pool workplace antidiscrimination laws prohibit the use of quotas or preferences for applicants of a certain race or gender.

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