The U.S. Supreme Court observed in 2003 that “major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” Grutter v. Bollinger, 539 U.S. 306, 330 (2003). Indeed, today, affirmative action policies adopted by most employers are not narrowly focused on remediating the effects of past discrimination. Rather, most employers establish policies to advance diversity, either as a social good in its own right or as a means of offering better goods and services and competing more effectively in a global marketplace. They tend to focus their efforts on expanding and targeting outreach efforts and enhancing their reputations for diversity and inclusion in their communities.
The Supreme Court has not yet squarely addressed the question of whether promoting diversity can be a sufficient justification for an employer considering race or another protected characteristic when making employment decisions.
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