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  • August 07, 2023

    Will the U.S. Supreme Court Ban Corporate Diversity, Equity, and Inclusion Initiatives?

    Recent decisions on race-based criteria for college admissions indicate how the U.S. Supreme Court may interpret similar provisions under Title VII of the Civil Rights Act of 1964. Clyde Tinnen details the decisions and advises businesses to review the compliance of their diversity, equity, and inclusion initiatives with Title VII.

    Clyde Tinnen

    abstract image of diversity showing colorful figurines

    On June 29, 2023, the U.S. Supreme Court issued its monumental decision in Students for Fair Admissions, Inc. v. Harvard and Students for Fair Admissions, Inc. v. UNC (SFFA opinion).

    The Court’s decision dominated headlines for weeks, and passionate public discourse has ensued over its impact among government officials, academic institutions, the media, and citizens. The Court’s decision included not-so-subtle clues as to how this Court will interpret similar provisions under Title VII of the Civil Rights Act of 1964.

    In light of this Court’s interpretation, businesses should carefully review the compliance of their diversity, equity, and inclusion initiatives with Title VII.

    The SFFA Opinion: Some Details

    The SFFA opinion effectively bans the use of race as a factor in college admissions.

    Specifically, the SFFA opinion provides that, based upon the Court’s interpretation of the Equal Protection Clause in the Fourteenth Amendment to the U.S. Constitution and Title V of the Civil Rights Act of 1964, the admissions programs of Harvard and UNC (University of North Carolina at Chapel Hill):

    • lacked sufficiently focused and measurable objectives warranting the use of race in college admissions;

    • unavoidably employed race in a negative manner;

    • involved racial stereotyping; and

    • lacked meaningful ​end points.

    As explained in the SFFA opinion, any exceptions to the Equal Protection Clause’s guarantee must survive a daunting two-step examination known as “strict scrutiny,”1 which asks:

    • whether the racial classification is used to "further compelling governmental interests;”2​ and

    • whether the government’s use of race is “narrowly tailored,” i.e., “necessary,” to achieve that interest.3

    The Court stated that its precedents have identified only two compelling interests that permit resort to race-based government action. One is remediating specific, identified instances of past discrimination that violated the Constitution or a statute.4

    The second is avoiding imminent and serious risks to human safety in prisons, such as a race riot.5

    The SFFA opinion contemplated that admissions to military academies may present “potentially distinct interests” that may allow race to be used as a factor in admissions to military academies, without providing any direction as to the rationale or details of this potential exception.

    Not Just Academia?

    Notably, concurrences to the SFFA opinion made it clear that the Court’s interpretation would apply in broader contexts than just college admissions.

    Clyde Tinnen Clyde Tinnen, Columbia 2006, is a corporate partner in the Milwaukee office of Foley & Lardner LLP. He focuses his practice on corporate law matters, including finance and securities law, banking, private equity, and investment management.

    Specifically, the opinion included the following statements:

    More broadly, it is becoming increasingly clear that discrimination on the basis of race – often packaged as “affirmative action” or “equity” programs – are based on the benighted notion “that it is possible to tell when discrimination helps, rather than hurts, racial minorities; …

    The solution to our Nation’s racial problems thus cannot come from policies grounded in affirmative action or some other conception of equity.

    The Supreme Court has never endorsed employers taking race-conscious employment actions based on diversity, equity, and inclusion as a compelling interest. However, the Court’s expressly antagonistic view as to affirmative action or equity programs means that this Court is likely to take an extremely narrow view as to what constitutes permissible employer actions in interpreting Title VII of the Civil Rights Act of 1964.

    There are multiple Title VII cases that may be heard by the Supreme Court as soon as its next term.

    Employers and Title VII

    Title VII of the Civil Rights Act of 1964, which applies to all employers with 15 or more employees, makes it unlawful for an employer:

    1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin;

    2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin; or

    3) to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

    (emphasis added)

    A narrow interpretation of permissible employer actions under Title VII may mean the end of many diversity, equity, and inclusions programs that are presently commonplace at many organizations.

    For example, the formation of employee "resource groups" or “affinity groups” associated by the members’ classification within a protected class (race, color, religion, sex, etc.) that provides members of said employee resource groups with special benefits, access to senior management, compensation, mentoring, education, training, scholarships, or recruitment, could be construed to be violative of Title VII.

    Similarly, training programs, internships, or fellowships that are targeted or set aside for any protected class may also be violative of Title VII.

    Conclusion: Review Policies and Programs

    It is advisable for businesses that have instituted these types of policies or programs to carefully review and consider the lawfulness of such policies or programs.

    Despite the best of intentions, failure to adopt Title VII compliant programs may result in fines, penalties, and unnecessary distractions for businesses found to be violating the law.

    This article was originally published on the State Bar of Wisconsin’s Business Law Blog. Visit the State Bar sections or the Business Law Section webpages to learn more about the benefits of section membership.


    1 Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227.

    2 Grutter v. Bollinger, 539 U. S. 306, 326.

    3 Fisher v. University of Tex. at Austin, 570 U. S. 297, 311-12.

    4 See, e.g., Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 720 (2007); Shaw v. Hunt, 517 U. S. 899, 909-10 (1996); post, at 19-20, 30-31 (opinion of THOMAS, J.).

    5 See Johnson v. California, 543 U. S. 499, 512-13 (2005).

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