A call for persistence: DEI programs in the workplace post-Students for Fair Admissions v. Harvard

The US Supreme Court finished an eventful term by issuing a bombshell decision that has left many employers conflicted and confused. In Students for Fair Admissions v. Harvard, the Court held that college affirmative action programs that use race as a "plus factor" in the admissions process violated the Equal Protection Clause of the 14th Amendment and Title VI of the Civil Rights Act. The decision did not directly decide the fate of Diversity, Equity, and Inclusion (DEI) programs in the workplace. Nevertheless, the decision has understandably raised questions regarding their viability and permissible scope in the light of the Court's reasoning. The decision has also served to embolden those groups who wish to abolish or substantially limit such workplace programs. Fortunately, a closer reading of the Court's decisions and an inventory of the enormous societal and enterprise benefits of properly administered workplace DEI programs should encourage companies to strongly persist in their efforts to champion and foster diversity in the workplace.

In resolving the question of how (or if) the Court's holding applies to employment, it is important to distinguish between affirmative action in college admissions and DEI programs in the workplace. The Harvard decision is limited to federal and state actors (under the 14th Amendment) and federal fund recipients (under Title VI). Discrimination in the private workplace is federally governed by Title VII, which is a different statutory scheme that is not directly addressed in the Harvard decision. A further distinction is that unlike affirmative action programs in college admissions, properly structured and administered workplace DEI programs should not be designed to give anyone preference based on protected class to the detriment of members of non-protected classes. Rather, they should be designed to expand opportunities by considering members of traditionally overlooked and underserved communities and educating workforces on cultural diversity and the power of inclusion. To reach these goals companies have reconsidered their goals and target customer base, given an increasingly diverse and global marketplace. They have also expanded their potential applicant pools to include more diverse and overlooked sources of talent. Furthermore, companies have educated their workforce regarding various cultural norms and celebrations, offered mentorship programs to assist in navigating corporate culture, and increased tuition reimbursement for acquiring skills that will help employees thrive and advance.

None of these actions are designed to give preference or unlawfully discriminate, but rather create opportunity and inclusivity for diverse groups which have been systemically overlooked and denied opportunities in the workplace. DEI programs, through education and broader recruitment efforts, serve to shatter the traditional paradigm that companies have been limiting themselves to accomplishing those ends. Ultimately, if a DEI program is properly administered, then the most qualified person for the job will be hired or promoted, and workers will feel accepted and valued by their employer regardless of their membership in a protected class. Businesses should also not overlook the enterprise benefits for DEI workplace programs, such as attracting talent and boosting profitability. Millennials are projected to comprise approximately 75% of the worldwide workforce by 2025. In a recent survey, 99% of working millennials identified workplace DEI as important to their decision on where they apply, while 87% responded that such programs were "very important" in making their application decisions. Regarding cultural and ethnic diversity, top-quartile companies outperformed those in the fourth one by 36% in profitability according to research firm McKinsey Quarterly. Fourth-quartile companies for gender diversity on executive teams were 19% more likely than companies in the other three quartiles to underperform on profitability. In addition, DEI programs increase the likelihood of participating companies having the cultural and customary awareness to offer a broader range of services and products that appeal to a wider variety of customers.

Proponents of the elimination of workplace DEI programs are no doubt emboldened by the trend of the U.S. Supreme Court in deciding issues of equality. So-called "reverse discrimination" cases are anticipated to increase and direct legal challenges to DEI programs have already been formally mounted. These trends are bound to make some employers question whether the benefits of these programs outweigh the risks. I submit to those employers that DEI workplace programs demonstrably prove to be highly beneficial to employees, employers, and society at large. When properly implemented, they also remain legally tenable despite the Court's latest decisions. Thus, while the Court's bombshell decision appears to have emboldened those who wish to legally challenge the future of DEI programs in the workplace, the fate of such programs hinges upon employers having the moral courage and good business sense to persist.Daren H. Lipinsky is a founding member and senior trial attorney at Rizio Lipinsky Law Firm, P.C.