Cautionary Alert: GOP Attorneys General Caution Corporate Entities on Affirmative Action

**Republican Attorneys General Warn CEOs about Using Race in Hiring Practices**

Thirteen Republican state attorneys general have sent letters to CEOs of the 100 biggest U.S. companies, cautioning them about the legal consequences of using race as a factor in hiring and employment practices. This warning stems from a recent Supreme Court ruling that dismantles affirmative action in higher education, potentially extending its impact to the workplace.

**A Potential Ripple Effect from the Recent Supreme Court Ruling**

The Republican state attorneys general argue that the Supreme Court’s ruling, which states that race cannot be a factor in college admissions, could also apply to private entities like employers. They emphasize that treating people differently based on the color of their skin is both unlawful and wrong. The attorneys general also suggest that Diversity, Equity, and Inclusion (DEI) programs may be considered a form of discrimination.

**The Impact on Employer Obligations and Commitments to DEI**

While the Supreme Court ruling itself does not directly change current employer obligations or commitments to DEI, experts believe it may have far-reaching consequences beyond higher education. According to Greg Hoff, associate counsel of the HR Policy Association, the decision only applies to higher education institutions and other entities receiving federal funding. Additionally, DEI efforts in workplaces differ significantly from affirmative action in college admissions. Workplace DEI can involve expanding outreach for new hires, creating employee resource groups for underrepresented workers, and reducing bias in hiring processes.

**Potential Challenges to Workplace Affirmative Action**

David Glasgow, executive director of the Meltzer Center for Diversity, Inclusion, and Belonging at New York University’s School of Law, explains that affirmative action in the workplace is technically still upheld by existing Supreme Court precedent. However, workplace affirmative action is rare, and it is likely that the current court would overturn those cases if challenged, similar to the college admissions decision.

**Expectations of Future Litigation**

Although the letter from the attorneys general does not initiate legal action, experts believe that future litigation may arise. The attorneys general state that they will closely observe companies’ practices in hiring employees and contractors, specifically mentioning companies like Airbnb, Facebook, Google, Goldman Sachs, Microsoft, and Netflix for their programs aimed at increasing racial diversity. Employers may take precautions to avoid litigation in response to the increased risk stemming from the Supreme Court ruling.

**Different Perspectives among State Attorneys General and Political Parties**

Not all state attorneys general supported the Supreme Court’s ruling or are eager to apply it outside of college admissions. Only about half of the nation’s Republican AGs signed the letter, while Democrats have condemned the ruling. Democrats argue that targeted affirmative action programs have long been upheld by the Supreme Court to promote diversity in higher education.

**Anticipated Impact on Racial Diversity in the Workforce**

Zamir Ben-Dan, an assistant professor of law at Temple University, anticipates that any action taken in the workplace to undermine DEI efforts will likely result in a decline in racial diversity within workforces. He points to previous instances where affirmative action was weakened in higher education, such as after California banned affirmative action in 1996, resulting in a decrease in enrollment for nonwhite students, particularly Black students.

In conclusion, the recent Supreme Court ruling on affirmative action in college admissions has raised concerns about its trickle-down effect to the workplace. Republican state attorneys general have warned CEOs about using race as a factor in hiring practices, noting the legal consequences. While the ruling itself does not directly impact employer obligations, experts anticipate potential litigation and changes to workplace affirmative action policies. The impact on diversity and inclusion efforts in the workforce remains uncertain and may lead to a decline in racial diversity if DEI initiatives are undermined.

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