Potential Implications of the Harvard Affirmative Action Case: Are Employer DEI Programs Next?

The upcoming Supreme Court decision in the Harvard and University of North Carolina affirmative action cases could have ripple effects beyond higher education and into the workplace. A panel of legal experts and CHROs moderated by David Fortney, Co-founder, Fortney & Scott, LLC, examined the potential impacts of the Supreme Court’s decision on diverse talent acquisition as well as employer diversity, equity, and inclusion initiatives.

“Profound implications for workforce development:” Christy Pambianchi emphasized that a decision banning affirmative action programs in higher education could make the existing imbalance in access to colleges and universities worse and correspondingly inhibit employers’ abilities to foster diverse talent. Ms. Pambianchi noted that companies use college campuses as a pipeline for diverse talent and that a negative outcome at the Supreme Court will increase already existing efforts to expand recruiting and outreach to better reach such talent. 

Employer DEI programs next? Eric Dreiband noted that many boutique law firms and nonprofit organizations are preparing or already initiating challenges to employer diversity programs in the wake of the Supreme Court’s upcoming decision. Sharon Masling discussed the balancing act facing employers involving the risk of litigation on the one hand and the reputational and business risks associated with a lack of diversity on the other hand. Ms. Pambianchi noted that employers are not going to stop implementing DEI plans: “As long as we have good faith efforts to hire the most qualified candidates, that is going to continue – diversity sourcing is going to continue. Our work in this space is not done.”

“Now is the time to prepare:” Ms. Masling noted that companies should start conducting inventories of their DEI programs and work with their legal teams to assess potential risk, as well as identify risk tolerance levels with senior leadership and the board. “Start thinking now about a communications plan and messaging because there will be a lot of conversations,” said Ms. Masling. Mr. Dreiband emphasized that no matter what happens with the Harvard case, there will be lawful employer DEI programs that will survive legal challenges.