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DE&I programs are under fire. Is yours the next target?

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It’s crucial to recognize that anti-discrimination laws safeguard all individuals
To maintain the essence of DEI while avoiding legal pitfalls, employers should focus on removing bar
Avoiding employment-related decisions based on race, sex, or categories prone to discrimination

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Implications for DEI initiatives and employment

On June 29th, the U.S. Supreme Court rendered a significant decision, ruling that Harvard and UNC’s race-based admissions policies, commonly known as “affirmative action,” were in violation of the Equal Protection Clause of the Fourteenth Amendment. This clause prohibits states from denying any person equal protection under the laws of the United States, and it also contravened Title VI of the Civil Rights Act.

This ruling carries implications beyond education and has relevance for human resources professionals aiming to safeguard their Diversity, Equity, and Inclusion (DEI) initiatives from inadvertently causing legal liabilities. Both Harvard and UNC had considered an applicant’s race in their admissions processes, with Harvard incorporating race at all five stages, and UNC instructing admissions officers to consider it among other factors like academic prowess and background. These institutions argued that their objective was to cultivate future leaders, foster diverse perspectives, and prepare engaged citizens. However, the Supreme Court found that while these goals were commendable, it was firmly established that race could not be utilized as either a positive or negative factor in admissions decisions.

In evaluating these selection processes under strict scrutiny, the Court identified three major shortcomings. Firstly, the affirmative action policies were deemed too vague for judicial review due to the absence of practical means to quantify or qualify racial standards and criteria.

Secondly, the Court underscored that these programs perpetuated harmful stereotypes, asserting that race-based admissions systems violated the Equal Protection Clause by failing to adhere to its mandates of not using race as a “negative” or as a stereotype. Justice Clarence Thomas emphasized that grouping individuals and making judgments based on assumed inherited or ancestral traits amounted to stereotyping.

Lastly, the Court highlighted the absence of a clear endpoint in these programs, a requirement set by the Grutter v. Bollinger case. The decision stated that enshrining a permanent justification for racial preferences would contravene the Constitution’s promise of equal protection, necessitating identifiable endpoints for the use of racial classifications.

Justice Neil Gorsuch, in his concurring opinion, further noted that these admissions programs violated Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal funds from intentionally treating individuals worse because of their race, color, or national origin, without regard to other reasons or motives. Gorsuch emphasized the similarity between Title VI and Title VII, underscoring that both codify a categorical rule of individual equality irrespective of race.

While this Supreme Court decision directly affects educational institutions, it resonates with Title VII, making it illegal for employers to discriminate based on race, color, religion, national origin, or sex. This extends to prohibiting retaliation against employees for reporting discrimination or opposing it. Federal contractors are also bound by Executive Order 11246, which forbids such discrimination. In light of this Supreme Court ruling and existing anti-discrimination laws, diversity, equity, and inclusion initiatives may raise concerns about “reverse discrimination” in the workplace.

It’s crucial to recognize that anti-discrimination laws safeguard all individuals. Poorly designed and executed DEI initiatives, coupled with inadequate training, can expose employers to significant liabilities. Consequently, employers must be vigilant to prevent complaints and ensure that their well-intentioned efforts do not backfire.

Complaints regarding DEI initiatives, including allegations of reverse discrimination, are not new and are likely to surge following this high-profile Supreme Court ruling. Currently, there is a split among circuits on how to assess reverse discrimination claims. Some circuits follow the prima facie test, similar to regular discrimination claims, while others require additional “background circumstances” evidence in reverse-discrimination cases. This test necessitates proof of circumstances implying discrimination, qualification for an open position, rejection, and filling the position with someone from a protected class.

To mitigate liability, employers should always be able to articulate the reasons behind employment decisions and communicate the rationale behind their DEI policies to demonstrate a lack of discriminatory intent. Avoiding employment-related decisions based on race, sex, or other categories prone to discrimination is essential. Furthermore, employers should refrain from retaliatory actions against employees who report mistreatment.

To maintain the essence of DEI while avoiding legal pitfalls, employers should focus on removing barriers to inclusion rather than creating unintentional quotas. DEI tools like affinity groups, mentoring programs, and training should be thoughtfully tailored to minimize potential liability.

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