Is DEI Illegal After the Supreme Court’s Affirmative Action Decisions?

Apr 17 2024

Amanda DeMatteis: Hi, Josh.

Josh Goodbaum: Hi, Amanda. What are we talking about today?

DeMatteis: I thought we would talk about diversity, equity, and inclusion, which is commonly known as DEI. I thought you would tell our viewers, number one, what does that mean? Why do we use this acronym? What does it really mean at work? Also, there’s been some recent Supreme Court decisions which have found Harvard and the University of North Carolina’s policies related to DEI as unconstitutional. What does that mean? Is DEI dead? Where do we go from here?

Goodbaum: Well, let’s start with the acronym DEI – Diversity, Equity, and Inclusion. Diversity means who’s represented in the workforce, just demographically who’s there. Equity refers to the concept of treating everybody fairly. And inclusion refers to the idea of belonging that people feel like it’s a place that they can participate and succeed.

In general, these are DEI values that most people sign onto, but not everybody signs onto how they get manifested in the workplace and in society at large. So, we use this acronym DEI to describe these three values that many organizations today strive to embody. Many companies think that maximizing DEI makes them stronger as organizations and better able to function in the marketplace. I want to be clear: DEI is not a euphemism for affirmative action, although I think a lot of people can hear it that way.

So, what the Supreme Court said in a case called Students for Fair Admission vs. Harvard and the University of North Carolina is that affirmative action in higher education – that is, colleges and universities – is illegal. You cannot discriminate on the basis of race in order to confer a benefit on traditionally underrepresented racial minorities. That was already true in the employment context with very limited exceptions.

So, that leads to the question, “Is DEI now illegal?”

Well, I think the answer to that is probably no. Companies still want to advance diversity, and they still can in certain ways. So, companies certainly can still profess a commitment to DEI principles. They can develop programs to uplift diverse workforces, including education about diverse perspectives for everybody, celebrating heritage months or having open affinity groups that are welcoming to everybody, and working to ensure that opportunities for jobs and promotions are open to everyone. Having open access, having opportunities for everyone is not discrimination.

What companies can’t do is confer a benefit on some people over other people because of membership in a protected category, such as race. You almost certainly, at this point, can’t have a leadership program that’s just for employees of color, for example. What remains a little unclear at this point, and the courts are gonna work it out over the coming years, is whether organizations can use proxies for race, such as socioeconomic status, in order to increase racial diversity or whether they can require that candidate pools – that is, the pool of applicants from which your job or promotion is being selected – include a certain percentage of diverse (which often frankly means non-white) candidates. Those are things that the courts are gonna work out.

But is DEI dead? I think the answer to that is no. And did the Supreme Court say that DEI is illegal or unconstitutional? Again, I think the answer to that is no.

DeMatteis: Thank you so much for clarifying. Thank you for watching, and we’ll see you next time!

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josh goodbaum discussing whether DEI is illegal

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