In Law360, Employment and Litigation Teams Examine Supreme Court Ruling on Affirmative Action in Higher Education

In an article for Law360,employment, executive compensation, and employee benefits counsel Greg Demers and litigation & enforcement counsel Renai Rodney discuss the U.S. Supreme Court's decision in Students for Fair Admissions Inc. v. President and Fellows of Harvard College and its implications for employers, particularly for companies that have rolled out diversity, equity and inclusion, or DEI, initiatives in recent years.

“Although the ruling, on its face, does not extend beyond the educational context, there is little doubt that the decision will embolden opponents of affirmative action to expand their challenges into the employment realm and elsewhere. Such litigation is already underway,” said Greg and Renai.

The article outlines practical steps companies can take to mitigate risk while still advancing their internal policy goals. They include steering clear of quotas, engaging in a nuanced decision-making process, eliminating implicit bias by expanding recruiting efforts, emphasizing the benefits of diverse perspectives, and carefully reviewing internal and external DEI communications.

“Case law will continue to evolve as test cases work their way through the system,” added Greg and Renai. “It is important to closely monitor these developments to ensure that DEI programs are appropriately tailored, particularly for companies in states that have been at the forefront of the anti-ESG movement.”