In response to the Supreme Court’s decision in Harvard/UNC in which the Court effectively prohibited affirmative action in higher education, thirteen Republican state attorneys general circulated a letter to Fortune 100 companies threatening lawsuits over potentially unlawful DEI practices.
“Racial discrimination is commonplace among Fortune 100 companies.” The letter claims, without evidence, that corporate DEI practices and initiatives amount to “pervasive” racial discrimination, including “explicit racial quotas and preferences in hiring, recruiting, retention, promotion, and advancement.” The letter also claims that such practices include “race-based contracting practices such as racial preferences and quotas in selecting suppliers.”
Quotas or goals? The letter cites three articles in support of the above assertions, in which various DEI initiatives at several large companies are detailed. These initiatives include commitments to increasing minority representation among new hires, leadership, and third-party contractors, including aspirational goals such as striving for a certain percentage of new hires to be from an underrepresented group. The Republican AGs’ letter equates – or conflates – such goals to strict hiring quotas, despite statements by the companies in the same cited articles to the contrary. While strict racial or gender-based hiring quotas are unlawful under federal employment anti-discrimination law, neither the letter – nor the articles it cites – provide evidence that Fortune 100 companies actually use such quotas.
The letter threatens to “hold accountable” those companies that use “any unlawful race-based quotas or preferences” in employment and contracting practices. “Your company must overcome its underlying bias and treat all employees, all applicants, and all contractors equally, without regard for race.”
Outlook: The letter is the latest clear harbinger of increased legal challenges to company DEI practices in the wake of the Supreme Court’s decision in Harvard/UNC. While that decision, by itself, did not change employers’ legal obligations under Title VII (which prohibits discrimination in employment), it is clear that it will incite legal challenges to corporate DEI practices. Employers should consider auditing their DEI practices and initiatives to ensure they remain in full compliance with Title VII.
