The High Court Didn’t Kill DEI at Work. Employers Shouldn’t Waver

Following the US Supreme Court’s decision in the Harvard and University of North Carolina affirmative action cases, some are claiming that the court’s reasoning hampers employer initiatives to promote diversity, equity, inclusion, and accessibility in their workforces.

But here’s the bottom line: The court’s decision is deeply disappointing and stands to severely undermine universities’ ability to realize the educational and civic benefits of diversity on campuses. While mourning the very real losses to the education of our nation’s youth, it’s important to recognize that workplace DEIA initiatives will survive.

DEIA initiatives include expanding recruitment activities to attract a broader applicant pool, tracking the effects of employment decisions on different groups of employees and publicizing the results, and establishing employee resource groups, among other measures. They aim to remove barriers to advancement for underrepresented groups and improve equal employment opportunity for all.

DEIA initiatives in employment are legally distinguishable from the race-based admissions decisions at issue in the Harvard and UNC cases. First, neither case arises under or concerns Title VII or other employment discrimination laws.

Second, both Harvard and UNC were urging the Supreme Court to recognize diversity itself as a compelling rationale for race-based decisions. But the court’s consideration—and employers’ implementation—of workforce DEIA initiatives has been based instead on efforts to remedy barriers in the workplace that have limited opportunities for underrepresented groups.

Indeed, under Title VII, the court has specifically authorized the use of temporary race-based measures when certain circumstances exist. Nothing in the court’s Harvard and UNC decision overturns those long-standing precedents or the Commission’s established guidelines on how private employers can permissibly take race into account in making employment decisions.

Perhaps most importantly, the Harvard and UNC cases address university admissions decisions that explicitly considered the race of particular applicants in deciding whether to admit them. The majority opinion went to great lengths to make that clear, using the phrase “race-based” over 40 times when referring to the programs at issue.

Employers’ DEIA initiatives, by contrast, don’t typically involve considering an individual’s race in a particular employment decision. Instead, they are undertaken, at least in part, for the purpose of improving the participation of underrepresented groups, but are typically implemented in race-neutral ways or in ways that don’t result in race-based selections. As Chief Justice John Roberts stated earlier this term in a voting case, “race consciousness does not lead inevitably to impermissible race discrimination.”

Indeed, Congress and the Supreme Court have long recognized that employment discrimination law sometimes requires employers to be conscious of race. Title VII itself, for example, bars disparate impact discrimination—practices that are facially neutral but that disproportionately exclude particular populations. Longstanding EEOC regulations make clear that employers are obligated to evaluate the impact of their selection procedures on protected groups at the front end and take steps to respond if those procedures have exclusionary effect.

From a policy perspective, DEIA efforts are crucial to removing barriers to equal employment so that all Americans have an opportunity to participate fully in the workforce, regardless of their race or other protected characteristics.

Efforts undertaken by employers in the wake of the tragic murders of George Floyd and other Black Americans have borne fruit. But there is still much more to be done, and intentional, sustained DEIA efforts are critical to expanding opportunities to greater sectors of the American workforce.

Moreover, DEIA practices do more than simply remove barriers to equal employment and help employers draw on the full talent and diversity of this country—they make good business sense for other reasons as well. Having a more diverse workplace can reduce the prevalence of harassment, a form of discrimination.

A more diverse workplace also makes companies more innovative and competitive and boosts employee engagement and retention. In fact, measures to improve opportunities for underrepresented applicants and employees can be beneficial for employers’ bottom lines. It’s no surprise that a majority of employed US adults believe that focusing on increasing DEIA at work is a good thing.

For all these reasons, employers can—and should—maintain their commitment to advancing DEIA principles in their workplaces. And while there may be circumstances in which employers could lawfully take race into account in making particular employment decisions, employers should start by embracing race-neutral DEIA measures. There are numerous resources that identify examples of lawful, effective race-neutral DEIA practices.

Those calling for an end to DEIA efforts due to the court’s decision are wrong. Race and other forms of unlawful discrimination remain far too pervasive in the workplace today.

As we approach the 60th anniversary of the March on Washington—the event that helped lead to the passage of the Civil Rights Act of 1964, including Title VII—it’s past time for us to recommit ourselves to fair, open, and inclusive workplaces, and to use all of the tools at our disposal, including robust DEIA initiatives, to fully realize the promise of equal opportunity for all.

The case is Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, US, No. 20-1199, 6/29/23.

The opinions expressed are solely those of the authors and do not reflect the positions of the Equal Employment Opportunity Commission. This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Jocelyn Samuels is currently serving as vice chair of the EEOC.

Zain Shirazi is an attorney advisor to the vice chair of the EEOC.

Laura Muñoz contributed to this article. Muñoz is a legal intern at the EEOC, and a J.D. candidate at Harvard Law School.

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