Employer DEI Initiatives: Students for Fair Admissions and its Aftermath

Description

In its recent decision in SFFA, the U.S. Supreme Court essentially eliminated race as a consideration in the college admissions process. Even though SFFA does not apply to private employers' DEI initiatives directly, the decision has put a target on DEI initiatives moving forward especially given Judge Gorsuch's concurring opinion that appears to invite challenges to such policies under Title VII.

DEI opponents seem to have taken up that invitation. Shortly following the decision, Republican Senator Tom Cotton wrote letters to 51 law firms contending that the firms' clients' and the firms' own DEI programs may be violating federal law based on the SFFA decision. Additionally, 13 Republican State Attorneys General sent a letter to every company on the Fortune 100 list warning that certain workplace diversity policies could be unlawfully discriminatory in light of SFFA and that companies engaging in racial discrimination will be held accountable. Twenty-one Democratic State Attorneys General responded with their own letter to the same companies applauding the companies' DEI efforts. Employers are in the middle of a political tug-of-war.

In addition to the political firestorm developing in SFFA’s wake, the U.S. Supreme Court granted certiorari for Muldrow v. City of St. Louis for its next term that has the potential to lower the standard to bring a Title VII action which could expose employers to a wider range of litigation implicating their DEI initiatives.

Listen as our panel provides an overview of the SFFA decision and discusses its impact on employer DEI programs. Our panelists will also advise counsel on considerations and best practices for developing or maintaining client DEI initiatives moving forward post-SFFA.