Supreme Court’s Affirmative Action Decision Spawns DEI Litigation

In a client alert about employment law developments in 2023, the Kramer Levin firm highlights the U.S. Supreme Court’s June decision in Students for Fair Admissions (SFFA), holding that affirmative action in higher education admissions is unconstitutional.

The ruling doesn’t bind private employers, but The SFFA decision has emboldened individuals and groups to challenge employer DEI practices through various legal means. 

Examples include lawsuits against law firms challenging diversity scholarship programs for allegedly excluding certain applicants. Additionally, “reverse” discrimination cases, such as Phillips v. Starbucks Corp., highlight instances where individuals claim they faced adverse actions due to their majority status. 

The America First Legal organization has filed letters urging investigations into major companies’ DEI practices. Challenges extend to state and local statutes favoring minority groups, agency rulemaking, and shareholder activism.

These examples illustrate the growing legal scrutiny of DEI practices. As these challenges persist into 2024, the author advises employers remains consistent: vigilance in evaluating DEI policies to ensure equal opportunities for all while fostering an inclusive environment that embraces diversity without engaging in potentially discriminatory practices.