*Thank you to Olivia Williams, Matt Berger, Delores Chichi, Mitch Robinson and Jennifer DeVlugt for their contribution to this Alert.

Key Takeaways

  • DE&I efforts across all institutions, including private employers, remain beneficial, positive and welcome efforts provided that such efforts are inclusive and do not rely on protected categories in any decision-making process.
  • With future legal attacks on DE&I efforts likely, private employers should take inventory of all of their current programs and policies and audit them for risk.

In a 6-3 decision, the U.S. Supreme Court held in Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll., No. 20-1199, 600 U.S. – (U.S. June 29, 2023) (available here) that affirmative action programs at educational institutions fail to satisfy the narrow restrictions of the Fourteenth Amendment’s Equal Protection Clause.

While this ruling only immediately impacts educational institutions, the decision will almost certainly have an effect on employers’ diversity, equity and inclusion (DE&I) efforts. Understanding the decision as it applies to educational institutions is critical to understanding its potential implications on private employers, so let’s start there.

Read full alert.