On June 29, in a 6-3 decision, the U.S. Supreme Court held in Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll. that affirmative action programs at educational institutions fail to satisfy the narrow restrictions of the 14th Amendment’s equal protection clause.
While this ruling immediately impacts only educational institutions, the decision will almost certainly have an effect on employers’ diversity, equity and inclusion (DE&I) efforts. Understanding the decision as it applies to educational institutions is critical to understanding its potential implications for private employers. But is there a broader reach that private employers can expect to see from the opinion that they should be aware of? Yes. If a private employer has implemented an affirmative action-like or DE&I program that involves quotas or relies on protected categories in employment decisions, that program is unlawful, and it always was, even before the Court’s Students for Fair Admissions decision. But with this decision, the Court has opened the door to, and made more likely, future legal challenges against a private employer’s DE&I efforts. And with future legal attacks on workplace DE&I efforts likely, corporate directors and fund managers must carefully exercise their fiduciary duties, and private equity and strategic acquirers should engage in legal due diligence review of acquisition targets’ employment practices to ensure that those practices are compliant with current laws.
Please join us for a webinar on Aug. 22 to learn more about how the decision and its potential implications, including future legal challenges, may impact private employers’ DE&I efforts. We will also cover how fiduciaries should dispatch their legal duties, including through legal due diligence review of acquisition targets’ employment practices. The discussion will also include best practices for reviewing your DE&I goals and objectives to ensure they are implemented in accordance with the law.
In the meantime, please read our recent alerts on the topic, also linked below. We hope you can join us!
Prior alerts discussing the Affirmative Action decision:
Now That We're Past the Holiday Let's Dissect the Supreme Court's Decision Concerning Affirmative Action and Any Implications It May Have for Private Employers
Implications of Supreme Court's Affirmative Action Decision for M&A Execution
Pending approval for 1.0 hour of CLE credit in CA, FL, GA, NY, PA, and TX. Other states may be available upon request.