The Supreme Court of the United States’ recent decision to strike down affirmative action admissions policies in higher education is having significant indirect consequences for private employers and their diversity, equity, and inclusion (DEI) efforts.

Quick Hits

• The Supreme Court’s affirmative action decisions and shifting public perceptions could lead to increased scrutiny of private employers’ DEI initiatives, voluntary affirmative action programs, and ESG efforts.
• Private employers may need to focus on aspects of diversity beyond race and may alternatively need to focus on inclusivity.

On June 29, 2023, the Supreme Court ruled that race-conscious college admissions policies at two universities aimed at maintaining racially diverse student bodies violated the Equal Protection Clause of the Fourteenth Amendment, which broadly prohibits discrimination based on race.

While the decisions will directly affect admissions policies at higher education institutions across the country, private employer DEI policies and initiatives, voluntary affirmative action programs, and environmental, social, and governance (ESG) efforts will also likely face greater scrutiny and legal challenges and employers may need to adapt to this quickly evolving legal landscape.

Increase in Legal Challenges

Employers are prohibited from discriminating based on race and several other protected characteristics under a variety of state and federal laws, notably Title VII of the Civil Rights Act of...

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