Litigation Targeting Large Company DEI Programs on the Rise
The Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA) has been a game changer not just in college admissions but in employment as well. While the decision did not apply directly to private employers, its strong language criticizing affirmative action has reverberated through the corporate […]
Mike Delikat is a Partner and Ernan Kiselica is an Associate at Orrick, Herrington & Sutcliffe LLP. This post is based on their Orrick memorandum.
The Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA) has been a game changer not just in college admissions but in employment as well. While the decision did not apply directly to private employers, its strong language criticizing affirmative action has reverberated through the corporate world. In concurrence, Justice Neil Gorsuch highlighted the parallels of Title VI and Title VII, noting both statutes “codify a categorical rule of individual equality, without regard to race.”
Conservative groups have seized on that language, and corporations such as Harley-Davidson and Jack Daniels have dropped DEI initiatives. Another large Midwest based manufacturing company says it will no longer sponsor “social or cultural awareness” events. Ford and Lowe’s have backed away from DEI-oriented programs and stopped participating in the Human Rights Campaign’s Corporate Equality Index. Other companies are reevaluating, rebranding, cutting back or eliminating DEI programs.
