What Does the College Affirmative Action Ruling Mean for Corporate DE&I?

On June 29, 2023, the US Supreme Court declared that considering race in college admissions practices violates the US Constitution. Even though the case arose in academia, many believe that opponents of diversity, equity, and inclusion (DE&I) workplace initiatives will use the Harvard case as a lever to contest DE&I programs in the workplace. Indeed, attorneys general from thirteen states have already threatened legal action over corporate diversity practices. And attorneys general from twenty-one states have responded with their points of view on corporate DE&I practices. 

In addition to the Harvard Supreme Court case, another court recently found that California legislation mandating diversity on boards is unconstitutional. And a legal challenge on the NASDAQ diversity requirement is underway.  

While we recommend organizations seek legal counsel on these issues, we share business guidance on recommended DE&I practices in an evolving socio-political landscape below:

• Focus on equity, defined as fairness for everyone, rather than diversity-related targets.
  
  
• Include clear business reasons for diversity in board job specifications, such as lived experience that would contribute to the understanding of markets and diversity of perspective.
  
  
• Include and engage members of both majority and minority groups in your DEI programs.
  
  
• Equip DE&I leaders with the skill set to navigate legal complexity and focus on business outcomes as they determine whether to continue or modify existing DE&I programs, policies, and related metrics.
  
  
• Systematically review DE&I-related communications as part of ESG and external reports and tailor regional communications inside global organizations as legislation varies widely around the world.