DIVERSITY EQUITY AND INCLUSION PROGRAMS IN LIGHT OF THE SUPREME COURT’S AFFIRMATIVE ACTION OPINION

 By: Ben North

It is now common knowledge that on June 29, 2023, the Supreme Court outlawed affirmative action in college admissions, insofar as it held that race preferencing for the purposes of increasing “diversity” violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Right Act. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023). The Court ruled that colleges and universities could not sufficiently justify preferencing certain races over others, by any interest in increasing the “diversity” of the student body or by remedying generalized societal discrimination. While identifiable instances of past discrimination by the state (e.g., slavery) may constitute a sufficiently compelling interest to justify race preferencing, a claim to remedy a more abstract view of societal discrimination will not suffice. Nor will any desire to make the student body more “diverse” suffice. As the Court put it, “[e]liminating racial discrimination means eliminating all of it.” Id., at 2161.  

While the decision is on its face limited to the educational admissions context, its logic plainly extends to employment. Just as a university may not under Title VI preference one applicant over another on the basis of race, an employer may not, under Title VII, preference one applicant over another on the basis of race. Both laws prohibit racial discrimination – if the Supreme Court interprets Title VI to ban race preferencing on the grounds of “diversity,” that holding will likely be applied by lower courts in Title VII race discrimination cases. It would therefore be wise for employers to immediately cease any DEI programs or initiatives that preference applicants or employees of one race over another.  

Some employers are not taking this advice, and they are suffering for it. Starbucks recently hired former Attorney General Eric Holder to implement their diversity initiatives, and he recommended in a Final Report that Starbucks implement, among other things, initiatives to preference “Black, Indigenous, and Latinx” employees in executive managerial positions. Obviously, this closely mirrors affirmative action, and because courts will frequently conduct a similar analysis between Title VI and Title VII claims, Smith v. Barton, 914 F.2d 1330, 1337 (9th Cir. 1990), these programs are ripe for a lawsuit. And indeed, Starbucks has been sued over its implementation of Holder’s advice. It also appears to currently be fending off an investigation by the U.S. Equal Employment Opportunity Commission, which enforces Title VII’s prohibition on race discrimination.  

Employers can follow the advice of “top” (usually heavily left-leaning) international law firms that may advise based on ideology rather than the law. Or they can follow the advice of lawyers who will apply the law as it evolves. Our firm is in the latter category. We sue employers that engage in any form of race discrimination, and the best way for an employer to protect itself is to hire attorneys with experience litigating these cases, to structure their policies. At Binnall Law Group, you will get no ideological advice – only legal advice to put your company in the best position possible under the law.