About a month ago, in Students for Fair Admissions v. Harvard College, the U.S. Supreme Court all but sounded the death knell for considering race or ethnicity as such in admissions to public educational institutions or those receiving federal funds.
Since then, many scholars, pundits, and attorneys have debated the extent to which the Court's decision may have consequences beyond university admissions-for example, in the spheres of employment and contracting, where policies and practices to foster "diversity, equity, and inclusion" (or DEI) have gained traction.
While it's still too early to predict the outcome, some commentators have taken the view that the decision's language and rationale may indeed escape academia's ivory towers for the workplace, or at least provide fodder for opponents to claim that various DEI policies are now on shakier ground.
Those predictions are now starting to bear fruit. In two separate open letters addressing the Supreme Court's ruling, elected officials recently cautioned major companies-and their outside counsel (!)-to reexamine corporate decisions to adopt or recommend DEI policies. Click the hyperlinks below to see the letters, which will only be summarized here.
The first letter came from thirteen Republican State Attorneys General and was addressed to every Fortune 100 CEO. These state officials announced that "the Supreme Court stated definitively that racial discrimination under the guise of affirmative action must end." They posited that the principles the Court espoused "apply equally to Title VII and other laws restricting race-based discrimination in employment and contracting," such as 42 U.S.C. §1981.
Their letter repeatedly decried what it labeled "discriminatory practices" such as "racial quotas and preferences in hiring, recruiting, retention, promotion, and advancement," as well as "racial preferences and quotas in selecting suppliers." The letter asserted that these types of practices may also violate state law, over which state officials would have regulatory jurisdiction.
The second letter, from U.S. Senator Tom Cotton (R-AK), was addressed to employment attorneys at dozens of the nation's largest law firms. This letter did not include finely tuned legal analysis, but rather threatened Congressional oversight "to scrutinize the proliferation of race-based employment practices."
Although the Supreme Court's recent decision "focused on colleges," Senator Cotton wrote, "the same principles and indeed the plain text of federal law also cover private employers." This letter concluded by imploring the recipients and their various unnamed clients "to preserve relevant documents in anticipation of investigations and litigation."
A few observations are in order.
As history has shown, open letters of this kind tend to function more as press releases than as warnings of imminent action. In particular, the prospect of lawyers or their clients being hauled before Congress to divulge privileged communications about DEI-related employment advice seems unlikely and would surely prompt independent legal challenges.
Nevertheless, these letters serve as early indicators that the Supreme Court's repudiating affirmative action in admissions has emboldened DEI's opponents. To be sure, private parties may well take cues from these missives.
The State AGs' letter reads something like a legal brief, and Senator Cotton predicts that "private individuals and organizations" will increasingly sue over corporate DEI policies.
Moreover, both letters repeat the Court's proclamation that "eliminating racial discrimination means eliminating all of it"-language that, to the semi-trained observer, appears likely to be quoted by future litigants. Odds are good that we haven't seen the last of that passage.
It remains far too soon to predict how courts will handle challenges to employers' DEI practices. Indeed, courts may not extend the Supreme Court's rationale to the employment context in the way, or to the degree, that some predict. Nonetheless, employers should prepare for potentially hostile regulators and employees making such claims. Employers should be mindful that we are in a brand new era.
Originally published August 1, 2023.
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