Legal issues arising outside the workplace can often directly affect workplace laws, especially regarding DEI initiatives. As many of us know, the US Supreme Court's 2023 decision in Students for Fair Admissions garnered a lot of publicity, broadly declaring that traditional "affirmative action" policies were illegal in college admissions. More specifically, the decision held that affirmative action violated the US Constitution, stating that (a) the use of race in decision-making was overbroad and arbitrary, (b) nothing about the colleges' affirmative action goals could be objectively measured, and (c) the policies "unduly harmed" other applicants because college admissions "are zero-sum, and a benefit provided to some applicants but not others necessarily advantages the former at the expense of the latter."
This decision from the Court, and the language used by it, stands in stark contrast to many employer initiatives promoting diversity, equity, and inclusion. Of course, there's been no pronouncement that "DEI," as a general concept, is unlawful, and employers are wise – for many reasons – to continue policies that promote inclusiveness and equity in the workplace. In some instances, however, DEI initiatives include committees, groups, scholarships, internships, and promotional opportunities designed to advance the interests of specific demographics that have historically been marginalized (e.g., women, employees of color, LGBT employees, etc.). As one might expect, those initiatives are often comprised exclusively of members of those demographics, either because the particular initiative excludes anyone else or because, practically speaking, members of the affected demographic are the only ones interested in participating. In other words, usually a "women's committee" is comprised exclusively of women.
More recently, we've had a national election, and many of the commentators and influencers involved in the incoming administration are openly hostile to "DEI" policies. Because of the Students for Fair Admissions decision and changes in federal policy, many employers are starting to adopt a more measured approach to DEI programs that are tied, either directly or tangentially, to job benefits. For example, scholarships and internships previously limited to certain classifications of applicants are being revisited, with limitations being lifted on who can apply or participate. After all, if a program (e.g., scholarship, networking group membership, etc.) is "zero-sum" where a "benefit provided to some applicants" would "necessarily advantage" one over another, it is worth considering whether that program really complies with anti-discrimination law.
But many DEI initiatives, and their underlying purposes, can remain. Even the US Supreme Court wrote (when discussing college admissions) that "nothing prohibits universities from considering an applicant's discussion of how race affected the applicant's life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute." So, it is still legal to have a "women's committee," for example, to address needs unique to women in the workplace. But if opportunities for career advancement are being discussed, considered, or distributed within that committee, it should not be limited to only women (despite its name).
All that being said, it is very, very important to note that, if you are a man, and you now want to join the "women's committee," please do not make all of us regret it and generate even bigger HR problems by doing stuff like this:
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
