Mike Muskat Quoted in Law360 Article on Potential Effects of SCOTUS Affirmative Action Decision on Corporate DEI Programs

Muskat Devine partner Mike Muskat has been featured in a Law360 article about the effects the U.S. Supreme Court’s affirmative action decision could have on corporate DEI programs.

On June 30, the high court ruled that admissions policies used by Harvard University and the University of North Carolina violated the 14th Amendment’s equal protection clause, making it unlawful for colleges to take race into consideration when deciding admissions.

In the article, headlined “4 Employer Takeaways From High Court’s Admissions Ruling,” Law360 details how the Supreme Court’s decision may cause employers to revise their diversity, equity and inclusion programs or may increase the number of discrimination lawsuits challenging DEI initiatives.

According to the article, the four employer takeaways from the decision include:

1. Employers may need to look at how their DEI programs are structured.

Experts recommend that employers review how their DEI programs are structured and implemented so it is clear the programs were never focused on making employment decisions based on demographics.

2. DEI programs may be the subject of more employee scrutiny.

Mr. Muskat told Law360 that DEI programs should focus on expanding recruiting and retaining opportunities for people of all backgrounds, not on imposing quotas. He also recommended companies be careful in how they talk about their DEI initiatives to prevent giving the wrong impression.

“Not every employer, but I think that there are some employers who have implemented DEI programs where they are communicating about those programs in a way that is too loose and is probably inadvertently suggesting to hiring managers and other employees in the organization that the DEI program calls for employment decisions to be made on the basis of race or sex,” said Mr. Muskat. “And what I think [Thursday’s] decision is a reminder to people of is that these DEI programs serve a very valuable purpose because they are recruiting and retention tools.”

3. There could be an increase in “reverse discrimination” cases.

“I think [the Supreme Court’s ruling] is going to have the effect of encouraging more white and male employees to bring employment discrimination claims involving DEI programs,” Mr. Muskat told Law360.

He also noted that he had already observed an uptick in such cases even before the Supreme Court’s ruling.

Mr. Muskat also said the ruling could lead third-party advocacy groups “to keep pushing for federal and state investigations and regulations” of corporate DEI programs or cause state legislatures to consider legislation or regulation.

4. Federal contractors could be next.

Federal contractors currently are required to have affirmative action plans aimed at recruiting and advancing underrepresented communities. While the Supreme Court’s decision does not directly impact these policies, experts agree that the federal government’s requirements for federal contractors could be next.

To read the full article, click here.