For decades employers have sought to promote diversity in their workforces. In recent years, employers have expanded these efforts by establishing policies and practices commonly referred to as diversity, equity and inclusion (DEI) programs. Employers have multiple objectives for adopting and maintaining DEI programs. Some do so in connection with their obligations as government contractors to pursue the goals of affirmative action. Other employers do so voluntarily and to pursue equal employment opportunity for members of historically disadvantaged groups. Many employers enhanced their DEI programs as part of their racial justice initiatives following the murder of George Floyd in 2020.

Last year, the Supreme Court decided a case that may affect how employers administer and talk about their DEI programs. In Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina (collectively, the SFFA decision), 600 U.S. 181 (2023), the Supreme Court ruled that Harvard and the University of North Carolina violated Title VI of the Civil Rights Act of 1964 and the U.S. Constitution in their use of race in their admissions processes. Because Title VII of the Civil Rights Act of 1964, which governs private employers' employment practices, holds important similarities to Title VI, many employment lawyers questioned how the SFFA decision applies to employers' consideration of race in the employment context.