How Are Employer Diversity Programs Different from Affirmative Action?

What Does the SCOTUS Ruling Mean for Employers?

On June 29, 2023, the U.S. Supreme Court issued a 6-3 decision striking down affirmative action programs at the University of North Carolina and Harvard University, effectively ending their affirmative action initiatives and the consideration of race as a factor when admitting students to higher education.

History of Affirmative Action

Affirmative action, policies to increase opportunities for historically underrepresented groups, such as racial and ethnic minorities, women, and people with disabilities, was first implemented in the United States in the 1960s as a response to the civil rights movement. Its goal was to address discrimination and ensure all people have an equal opportunity to succeed.

The US Department of Labor’s affirmative action policy was established in 1965 through Executive Order 11246. The policy requires federal contractors and subcontractors to take steps to ensure equal employment opportunity for all regardless of race, color, religion, sex, national origin, disability status, or age. Other employers that don’t fall into this category are not subject to the policy, although they may implement one voluntarily as long as it does not violate any laws.

Misunderstandings About Affirmative Action

Affirmative action is often misunderstood. Some people believe that it gives preferential treatment to minority applicants, even if they are less qualified than white applicants. However, this is not the case. Affirmative action programs are designed to consider race as one factor among many, and they must be narrowly tailored to achieve the goal of diversity.

Affirmative Action in the University Setting

Many colleges and universities have adopted voluntary affirmative action programs in their admissions departments. Typically, race is one of many factors used to consider applicants. Per the Civil Rights Act, race cannot be used as the sole determinant of admission, but it previously could be considered along with other factors such as academic achievement, extracurricular activities, and socioeconomic background.

The goal of affirmative action in college admissions was to create a more diverse student body. The idea is to benefit all students by exposing them to different perspectives and experiences and to foster increased innovation and creativity.

In 1978, the U.S. Supreme Court ruled in the case of Regents of the University of California v. Bakke that race could be considered as one factor in college admissions, but that quotas were illegal. The Court has upheld affirmative action in college admissions in subsequent rulings, such as in 2016 in the case of Fisher v. University of Texas at Austin.

However, the most recent ruling by the U.S. Supreme Court, Students for Fair Admissions, Inc. V. President and Fellows of Harvard College, in June 2023 struck down affirmative action in college admissions, stating that race can no longer be considered, forcing schools to find other ways to ensure diversity on their campuses.

 What Does the Supreme Court Decision Mean for Employers?

The decision does not affect affirmative action programs in employment but could indicate potential litigation down the road regarding such programs in the employment setting. Employers who work with the US government are still required to comply with federal affirmative action laws. Employers who do not have a federal contract are not required to comply with affirmative action laws, but they may implement such a plan if they choose to. Many employers now have created diversity, equity, and inclusion plans to focus on creating a culture where all people feel valued and respected.

 Diversity and Inclusion Programs

Diversity and inclusion programs are similar to affirmative action in that they aim to create a more inclusive and diverse environment. However, diversity and inclusion programs are not the same as affirmative action. Affirmative action programs focus solely on increasing opportunities for historically underrepresented groups, while diversity and inclusion programs also focus on creating a welcoming and supportive environment for all employees and students. These programs may include activities such as unconscious bias training, employee resource groups, and mentorship programs.

CharacteristicAffirmative ActionDiversity and Inclusion
GoalAddress past discrimination and create a more diverse workforce or student bodyCreate a more inclusive culture where all people feel valued and respected
ApproachFocuses on increasing the number of underrepresented groupsFocuses on creating a culture of belonging and respect
Use of raceMay use race as a factor in decision-makingDoes not use race as a factor in decision-making


The Supreme Court’s recent decision on affirmative action is a major change for the admissions departments in institutions of higher education. It remains to be seen how colleges and universities will change their recruiting and admissions policies and what impact this will have on campuses across the county. 

It is important to note that diversity and inclusion programs are still legal and encouraged. Employers, colleges and universities can and should continue to implement programs that promote diversity and inclusion without using race as a factor.  Employers should also remain aware that potential further litigation could occur.

Here are some examples of diversity and inclusion programs:

  • Employee resource groups (ERGs)- These employee-led groups provide support and networking opportunities for employees from underrepresented groups.
  • Diversity training programs – These programs teach employees about unconscious bias and how to create a more inclusive workplace.
  • Mentorship programs – Mentoring programs match employees from underrepresented groups with more experienced employees who can provide guidance and support.
  • DEI (diversity, equity, and inclusion) initiatives – These are comprehensive efforts to create a more inclusive and equitable workplace.

These are just a few examples of diversity and inclusion programs. Employers and colleges and universities can implement a variety of programs to promote diversity and inclusion, depending on their specific needs.

Contact Our Frisco Employment Law Attorneys Today

Considering a DEI plan or wondering if your affirmative action initiative is lawful? For help with any employment or business law matter, the Frisco employment lawyers at Simon | Paschal PLLC have you covered. To schedule a consultation today, contact us online or call (972) 893-9340.

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