Employers Face Questions On Diversity Programs

Employment Law

In the wake of the U.S. Supreme Court’s June decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, where the justices struck down the use of affirmative action as part of the admissions process at institutions of higher education, employers are facing concerns about workplace diversity policies in the form of dueling letters from state Attorneys General (AGs).

A group of 13 Republican AGs sent a letter to every company on the Fortune 100 list, arguing that race-based initiatives and quotas in recruiting, retention and advancement that attempt to achieve racial diversity may constitute unlawful discrimination.

The letter cautioned that companies that fail to stop using such race-based quotas will be “held accountable.”

“Treating people differently because of the color of their skin, even for benign purposes, is unlawful and wrong,” the AGs of Alabama, Arkansas, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, South Carolina, Tennessee and West Virginia wrote. “Companies that engage in racial discrimination should and will face serious legal consequences.”

The Republican AGs highlighted some of the programs they characterized as discriminatory, including “racial preferences and quotas in selecting suppliers, providing overt preferential treatment to customers on the basis of race and pressuring contractors to adopt the company’s racially discriminatory quotas and preferences.”

“Well-intentioned racial discrimination is just as illegal as invidious discrimination,” the letter noted. “[T]he Supreme Court’s recent decision should place every employer and contractor on notice of the illegality of racial quotas and race-based preferences in employment and contracting practices. As Attorneys General, it is incumbent upon us to remind all entities operating within our respective jurisdictions of the binding nature of American anti-discrimination laws. If your company previously resorted to racial preferences or naked quotas to offset its bigotry, that discriminatory path is now definitively closed.”

In response, a coalition of 21 Democratic AGs authored their own letter to the same employers, applauding the companies for their efforts to combat historic racism and contending that it was misleading of the Republican letter to suggest that the Supreme Court’s decision imposed new prohibitions on the diversity-related initiatives of private employers.

“We condemn the letter’s tone of intimidation, which purposefully seeks to undermine efforts to reduce racial inequities in corporate America,” according to the AGs of Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington and Washington, D.C. “As the chief legal officers of our states, we recognize the many benefits of a diverse population, business community and workforce, and share a commitment to expanding opportunity for all.”

The Democratic AGs attempted to reassure employers that corporate efforts to recruit diverse workforces and create inclusive work environments are legal and actually reduce corporate risk for claims of discrimination, encouraging businesses to double down on diversity-focused programs “because there is still much more work to be done.”

Properly read, the Supreme Court’s decision “provides no basis to conclude that a company’s efforts to reach and recruit from a broad and diverse applicant pool is now prohibited,” according to the letter. “Leading companies have long set diversity-related goals and operated successful and lawful diversity, equity and inclusion programs under the guidance of Title VII. Properly formulated and administered programs are not unconstitutional.”

Aspirational diversity goals and concerted recruitment efforts to increase the diversity of a company’s workforce are not hiring quotas, the AGs added.

“Rest assured that we are committed to fighting against discrimination and to expanding opportunities for all,” the Democratic AGs wrote. “We will vigorously oppose any attempts to intimidate or harass businesses who engage in vital efforts to advance diversity and expand opportunities for the nation’s workforce.”

To read the letter from the Republican AGs, click here.

To read the letter from the Democratic AGs, click here.

Why it matters

The letters illustrate the challenge faced by employers in the wake of the U.S. Supreme Court’s decision, with Republican AGs urging companies to end the use of race-based initiatives and quotas, while the Democratic AGs are countering that diversity goals and recruitment efforts are not discriminatory.



pursuant to New York DR 2-101(f)

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