As previously mentioned on D+G PERKS, many employers are now grappling with the legality of their DEI efforts in the wake of the Supreme Court’s recent decision striking down affirmative action plans at universities.

NYU law professors Kenji Yoshino and David Glasgow, however, “strongly believe that the Court has left plenty of room to continue advancing diversity and inclusion in the workplace.” Their insightful publications on the topic and advice to employers in the current moment, can be found here: What SCOTUS’s Affirmative Action Decision Means for Corporate DEI and here: Does the US Supreme Court Decision on Affirmative Action Affect Your Company’s Diversity Initiatives? | Catalyst. Both are worth a close read.

As they state in part, “[f]or starters, the Court’s decision was about affirmative action in higher-education admissions, not affirmative action in private workplaces. While the Court held that affirmative action violates the Equal Protection Clause in the US Constitution (and, by extension, Title VI of the Civil Rights Act of 1964), it did not hold that affirmative action violates Title VII of the Civil Rights Act of 1964—the main statute governing the employment relationship. To end workplace affirmative action, the Court would need to overrule two of its longstanding precedents—United Steelworkers v. Weber (1979) and Johnson v. Transportation Agency (1987)—which authorized affirmative action under Title VII. Second, most DEI initiatives in the workplace are not affirmative action in the sense addressed in this decision, because they do not involve employers taking race or other legally protected characteristics into account when making hiring or promotion decisions. Rather, they involve broader efforts to advance a more diverse and inclusive workplace, such as establishing employee resource groups, creating mentorship and sponsorship programs, conducting education and training, removing bias from internal procedures, and so on. This decision has no direct bearing on those activities. Third, [the Supreme Court’s recent] decision relates to race, whereas DEI initiatives involve a range of classifications including gender, sexual orientation, disability, age, socioeconomic status, and more. This decision does not implicate DEI efforts in those other domains.”