Supreme Court’s Race Ruling Reaches Beyond Harvard’s Gates

This month, Colorado Attorney General Phil Weiser issued a formal opinion announcing that businesses in the state may freely implement “Diversity, Equity, and Inclusion” (DEI) programs. The formal opinion asserts that the US Supreme Court’s decision in the Students for Fair Admission (SFFA) case—which struck down racial preferences at Harvard College and the University of North Carolina—doesn’t change anything about these programs.

But that’s not quite right. The decision handed down to UNC and Harvard did reinforce certain limits on race-based programs, even within the private sector.

The important principle that the Court adopted in SFFA was the concept of colorblindness—that race is not determinative of a person’s life, talents, biography, and experiences. Instead, the use of race in public decision-making drives us apart, and for that reason is nearly always illegal. This applies to affirmative action in employment just as much as college admissions.

If a business uses race to decide who to hire, promote, fire, or demote, that is generally illegal. If a business uses race to decide who to staff on certain projects, or which specific employees will have mentors, that is generally illegal. If a business uses race to determine who will talk first at meetings, or whose opinion will count more for internal discussions, that is generally illegal.

Businesses must follow the law, as Weiser concedes. That includes federal civil rights statutes like Title VII.

Title VII bans race discrimination in employment, even by private employers. It also makes it illegal for any private business to establish a “hostile work environment” for individuals of any race—including Caucasians. To be clear, a business’s diversity program could absolutely cause a hostile work environment.

For example, if Caucasian employees during corporate DEI training must acknowledge their “white privilege,” or acknowledge that they are inherently racist, or that whites invariably think of non-whites as lesser individuals, that training all but guarantees a hostile work environment. Indeed, as a civil rights attorney, I am currently involved in litigation alleging this exact theory against Weiser’s office. Our lawsuit is regarding the Colorado prison system’s DEI training, which ludicrously asserted that Caucasians like my client invented race for the sole purpose of oppressing non-whites.

The attempt to draw a brick wall to distinguish schools from workplaces fails. Title VII’s text is even broader than the Constitution’s Equal Protection Clause—the provision that the Court used to strike down affirmative action in SFFA. If Title VII is stricter than the Constitution, and we know the Constitution prohibits race-based programs, it should be clear that those pushing reverse racism in the private sector are running headfirst into a brick wall of case law.

So, what is left of DEI programs? Weiser says that businesses may expand their outreach programs and that they may have internal groups of employees with shared interests. Such policies are probably legal. However, for Colorado’s most powerful lawyer to issue an official document that businesses are free to engage in “DEI” programs more broadly, defies the core of federal civil rights law—race discrimination in the workplace is illegal.

As five other state Attorneys General have written in a competing letter, the Supreme Court in SFFA rejected the idea that “diversity” is an all-purpose shield to charges of discrimination. The Court rightly held that even the racial classifications that we commonly use—whites, blacks, Hispanics, and Asians—are themselves illogical categories that fail to represent our individuality. Even within the category of “Asians,” there is a multitude of various cultural expressions of over two billion people in the world. Such categories are simply arbitrary, and reliance on them to make employment decisions ought to generally be considered unlawful by every state attorney general in this country.

As the Supreme Court stated in SFFA, “Eliminating racial discrimination means eliminating all of it.” The Court offered no exception for workplaces, so employers may unfortunately ignore this fact, at their own legal peril. When they end up in federal court, Weiser will not be there to defend them.