OPINION: Which corporate diversity efforts are now illegal?

The Supreme Court’s landmark affirmative action ruling ending race-conscious college admissions has sparked a new debate: Does it curtail companies that want to consider racial diversity in their hiring?

I believe it does, as I predicted when the case was argued back in October 2022. Yes, the ruling in Students for Fair Admissions v. Harvard technically only applied to higher education. But Justice Neil Gorsuch wrote a separate concurrence to declare that Title VII, the hiring and workplace civil rights law, should be interpreted identically to Title VI, which governs antidiscrimination in higher education. He made it crystal clear that in his view, the court’s rule that an educational institution “may never discriminate based on race” now applies with equal force to employers.

To be clear, what we’re talking about here is affirmative action in the sense of considering the race of a candidate as a plus in choosing to hire them — with the goal of achieving a more racially diverse workplace.

In 1979, a very different Supreme Court issued a liberal opinion in a case called United Steelworkers v. Weber, allowing private employers to use race-based affirmative action in hiring. An argument could be made that the 1979 decision is still on the books and hasn’t been expressly overruled. But Gorsuch didn’t even mention it. That’s probably because the logic of the majority opinion in Students for Fair Admissions v. Harvard strongly indicates that the 1979 case has now been consigned to the dustbin of legal history.

Practically, no lawyer advising a client today could assure the client that it still would be lawful to consider race in hiring. An employer who took account of the race of job applicants as part of the goal of creating a diverse workplace would be running headlong into the Supreme Court’s ruling.

Start with the question of what kinds of things employers making a hiring decision can no longer lawfully say, even privately. In considering a candidate for a job, the decision-maker, whether in human resources or on a hiring committee, can no longer describe a candidate’s race as a plus because it would bring greater diversity to the workplace.

It has been illegal since 1964 for an employer to say that it would only consider a candidate of a certain color for a given job — “Whites only need apply.” But it has been lawful — and commonplace — in hiring to say that diversity concerns support the choice of a particular candidate.

That’s now unlawful, at least assuming that Title VII determination is the same as Title VI discrimination, which Gorsuch asserted. It will require an immediate change in the logic and culture of hiring.

For a company to announce more general goals of racial diversity in hiring, like a target number of employees of color, might not be strictly illegal, provided that no individual employee was ever favored or not favored because of race. But it would be very risky for an employer to announce such goals, knowing that doing so could be used as evidence by a frustrated applicant suing for racial discrimination.

It’s hard to overstate the significance of these shifts. Anyone who has been involved in hiring issues, from board level to entry-level recruitment, knows how ubiquitous racial diversity concerns have become in recent years. To take racial diversity out of the hiring equation is to shift not only legal norms, but social practice.

To be sure, the Supreme Court didn’t outlaw the pursuit of every kind of diversity. You could still hire on the basis of geographical diversity or socioeconomic diversity, so long as neither is intended as a proxy for racial diversity. But those other kinds of diversity haven’t historically been very significant in private-sector hiring decisions.

Some employers will no doubt be able to issue new guidance to HR, provide training, and expect compliance to follow. Yet it’s almost impossible to ask humans to turn on a dime when it comes to powerfully held moral beliefs. People who have been genuinely committed to the value of racial diversity are not going to change their minds just because the Supreme Court has said they may not consider that value any longer.

The same is surely true of chief diversity officers and other executives whose jobs have been to focus on diversity, equity and inclusion. If your whole job description has been to press for diversity, especially racial diversity, what are you supposed to do when pursuing that objective has been rendered effectively illegal?

In the months and years ahead, we will find out the answer. Perhaps some DEI hiring efforts can be refocused on nonracial forms of diversity. But that will be challenging both practically and theoretically. It will be a bit like playing Hamlet without the prince.

Then there’s the question of gender diversity. The court managed to avoid the topic entirely in its ruling in Students for Fair Admissions v. Harvard, because Title VI doesn’t mention determination based on sex, just race and national origin. But Title VII does prohibit discrimination based on sex. Thus, according to Gorsuch’s interpretation of the two laws, it should now be unlawful for an employer to consider gender in hiring, the same as it would be unlawful to consider race. The gender question is further complicated by the technical question of whether the discrimination bans in Title VI and Title VII are identical to the 14th Amendment’s commitment to equal protection under the laws.

For now, the takeaway is pretty straightforward: The affirmative action ruling isn’t only a transformative moment in higher education. It’s transformative for considering racial diversity in employment as well.

There will no doubt be more legal wrangling over the issue. But the conservative Supreme Court has made its views evident. This jurisprudential revolution is going to have social consequences for employment as well as education.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”

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