Designing Global Corporate DEI Initiatives in Wake of US Decision on Affirmative Action

In June 2023, the Supreme Court of the United States imposed strict limitations on the use of race in college admissions decisions. Given the outsized nature of US influence on both global perceptions and corporate practice, it is essential to consider how the Students for Fair Admissions (SFFA) decision is likely to affect corporate diversity, equity, and inclusion (DEI) initiatives around the world. In this article, the authors discuss how an incorrect understanding of the SFFA decision could negatively impact global perceptions of DEI and provide guidance for how to minimize these impacts. Put simply, the Supreme Court decision does not substantially change US corporate DEI methodology. The SFFA opinion is consistent with the “anti-discrimination” approach to advancing racial equality that has long been a feature of US law. Formal US “affirmative action” programs are strictly limited to circumstances where the employer is adopting targeted remedies to correct its own specifically identified discriminatory practices. Policies such as “employment equity” in Canada, “positive action” in Europe, “special measures” in Australia, or “affirmative action” in Brazil require, encourage, or tolerate to varying degrees social identity-based quotas, preferences, and exclusive recruiting measures of the type prohibited in the United States. Finally, understanding the anti-subordination approach—rejected by the Supreme Court majority but embraced by many national laws—allows for a recommitment to “do equity” using explicitly affirmative actions, where they are permitted, and an equity-based approach to all DEI initiatives.

• equity, diversity and inclusion, corporate DEI initiatives, affirmative action, Students for Fair Admissions Ruling