ACC Briefing: DEI Impact of US Supreme Court Affirmative Action Decision 

• In its Students for Fair Admissions (“SFFA”) v. Harvard and University of North Carolina decision of June 29, 2023, the US Supreme Court severely limited the use of race in the college admissions process (and only allows indirect use of race). 

• While the case directly applies only in the college admissions context, it will likely have effects on DEI/ESG efforts and employment law generally.  

College Admissions 

• Private and public universities need to carefully review their policies for compliance with this decision. 

• The Court’s ruling applies to public universities through the Equal Protection clause of the Fourteenth amendment, and private universities that accept federal funds (which includes almost all private universities) through Title VI of the Civil Rights Act of 1964.  

Broader Impact on Employers 

• The Court questions using race as a factor to increase diversity. This may encourage employee questioning of private employers’ DEI and ESG efforts and may increase reverse discrimination complaints (where non-minority employees claim they are discriminated against). 

• Lower courts may be influenced by this decision to be more accepting of reverse discrimination claims, and subject DEI/ESG and affirmative action plans to heightened scrutiny.  

• Employers’ ability to take race into account in hiring was already severely limited by Title VII of the 1964 Civil Right Act and state laws before this decision. 

• Currently the only permitted use of race conscious hiring is very limited – using a narrowly tailored, temporary program where there is a “manifest imbalance” as outlined in United Steelworkers of America v. Weber.  

• Employers with federal contracts are required through the US Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) to implement affirmative action plans, but they are expressly prohibited from taking race into account in hiring decisions.   

• The safest way to increase workplace diversity for all employers remains using recruiting methods to increase the diversity of the applicant pool. 

What should in-house counsel do? 

• Review your DEI and ESG plans to ensure that your policies are implemented according to the law. Policies should not give preference to any race or protected category, except in narrow circumstances.   

• If considering a race or sex-based affirmative action plan as outlined in Weber, consider working with employment counsel to develop a compliant policy, to help defend against discrimination complaints. 

• Prepare US employers for a potential increase in employees questioning DEI and ESG plans that focus on increasing diversity, and for a potential increase in reverse discrimination complaints.  

• Consider additional training for recruiters and hiring managers to reinforce that the best qualified employees should be hired to fill positions without regard to race or other protected categories.  

• Watch out for state laws that may attempt to extend the decision to stymie DEI and ESG efforts.   

Learn More About the Implications:  

Affirmative Action: Implications of the US Supreme Court Decision regarding Harvard and UNC, by the Association of Corporate Counsel (June 30, 2023)  

Supreme Court Bans Affirmative Action in College Admissions: Exploring Potential Employment Implications, by Christy Kiely, Annette Tyman, Loren Gesinsky, and Camille Olson, Seyfarth Shaw LLP (June 29, 2023)  

Keeping DEI Legal: Voluntary Affirmative Action, by Dawn Blume, Cara Yates Crotty, ACC Docket (October 20, 2022)  

ACC Foundation DEI Maturity Model