Did the Supreme Court's affirmative action decision (SFFA v. Harvard) make workplace diversity, equity, and inclusion programs illegal?

Plain-English summary

After the U.S. Supreme Court ruled in Students for Fair Admissions v. Harvard in June 2023 that race-conscious admissions at Harvard and the University of North Carolina violated the Equal Protection Clause and Title VI of the Civil Rights Act, a wave of public commentary asserted that workplace diversity, equity, and inclusion (DEI) programs were now also unlawful. Colorado Attorney General Phil Weiser issued this opinion on his own initiative to push back on that claim.

The opinion's answer is direct: SFFA did not address employment law. The case was about university admissions, decided under different statutes than the ones that govern employer DEI programs. Workplace DEI programs are governed by Title VII of the Civil Rights Act of 1964, which the Supreme Court did not interpret in SFFA. Title VII still allows employers to take steps that expand opportunity for historically underrepresented groups, including diverse recruiting, mentorship programs, employee resource groups, and chief diversity officer roles.

The opinion quotes the EEOC, which holds enforcement authority under Title VII, confirming that SFFA does "not address employer efforts to encourage diverse and inclusive workforces" and that Title VII still permits employers to "implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace."

The opinion also reminds employers that Title VII has long allowed limited consideration of protected status in narrow circumstances, citing the Supreme Court's Weber and Johnson decisions, which upheld voluntary affirmative action plans designed to remedy manifest underrepresentation. Those cases remain good law after SFFA.

Finally, the opinion notes the disparate-impact prong of Title VII: even facially neutral employment policies can be unlawful if they disadvantage protected classes without business necessity. So employers should monitor their policies in both directions, not just for explicit race or sex distinctions.

What this means for you

If you run HR or DEI programs at a Colorado employer

The opinion is your strongest single piece of in-state authority for the proposition that your DEI program is still lawful. Specific activities the opinion identifies as compliant with Title VII:

• Chief diversity officer roles to ensure access to mentoring and career development.
• Mentorship programs that increase engagement and advancement, especially among historically disadvantaged employees.
• Targeted recruiting through diverse channels to ensure a diverse applicant pipeline.
• Employee resource groups (voluntary internal communities of employees with shared interests).

What the opinion does not bless: making hiring, promotion, compensation, or termination decisions based on race or sex, or programs that would "adversely affect" or "deprive" employees of opportunities because of protected status. Those would still violate Title VII, just as they did before SFFA.

If you receive a demand letter from an outside group claiming your DEI program is now illegal under SFFA, this opinion gives you a clear, on-record AG response: SFFA was about admissions under Title VI, not about employment under Title VII.

If you are an employee at a Colorado workplace with DEI programs

Your employer's DEI programs aren't suddenly unlawful. If you participate in an employee resource group, mentorship program, or other DEI initiative, you can continue to do so. The opinion doesn't change anything about what you, as an employee, are entitled to or expected to do.

If your employer used to have DEI programs and rolled them back citing SFFA, the opinion suggests that legal claim is incorrect. That doesn't mean your employer must restore them; private employers generally have discretion in their employment programs, but the legal cover they cited for cancelling DEI may not actually exist.

If you are an employer making decisions about whether to keep or scale back DEI

You have legal cover for keeping DEI programs that are designed to expand opportunity and ensure equal access. The opinion specifically endorses opportunity-expanding programs (mentoring, recruiting, ERGs) over programs that would create explicit preferences or quotas in selection decisions.

The cleanest legal frame is this: programs that bring more people in (recruiting outreach, mentorship, training access) are protected. Programs that pick winners and losers based on protected status (a hiring quota, a promotion preference based on race or sex) are not, and were not protected before SFFA either. SFFA didn't change either of those baselines.

For government employers (state agencies, local governments, school districts), the analysis is similar. The opinion notes Colorado's own Universal Policy on Equity, Diversity, and Inclusion in State Employment from September 2020.

If you are an employment lawyer advising a Colorado client

The reporters in the citations matter. SFFA is a U.S. Supreme Court decision (600 U.S. 181). Weber and Johnson are also U.S. Supreme Court decisions (443 U.S. and 480 U.S.). Doe v. Kamehameha Schools is from the Ninth Circuit, en banc. Shea v. Kerry is from the D.C. Circuit. The EEOC statement quoted in the opinion is from the EEOC Chair, dated June 29, 2023.

The opinion's most useful analytic move is the strict separation between the SFFA framework (admissions, Equal Protection, Title VI, strict scrutiny) and the Title VII framework (employment, statutory protections, with Weber/Johnson allowing limited voluntary affirmative action to remedy manifest underrepresentation). Treat them as separate legal regimes when responding to challenges to client DEI programs.

The disparate-impact reminder (42 U.S.C. § 2000e-2(k)(1)(A)(i)) is also a helpful framing tool. It cuts both ways: an employer can defend recruiting outreach as not having an adverse impact on any protected class, but should also audit policies to make sure facially neutral practices aren't producing unlawful disparate impact.

Common questions

Q: Did SFFA make all DEI programs illegal?
A: No. SFFA addressed race-conscious admissions at universities under the Equal Protection Clause and Title VI of the Civil Rights Act. It did not address workplace DEI programs, which are governed by Title VII. The opinion is explicit on this distinction.

Q: Can my employer still have a chief diversity officer?
A: Yes. The opinion specifically lists chief diversity officer roles among the DEI activities that remain lawful under Title VII.

Q: Can my employer still recruit at HBCUs or affinity job fairs?
A: Yes, with the qualification that recruitment efforts cannot adversely affect or deprive other applicants of opportunity. Outreach to expand the applicant pool is treated differently from selection criteria that prefer one group over another.

Q: Can employee resource groups continue?
A: Yes. The opinion specifically endorses employee resource groups as voluntary internal communities for employees with shared interests, helping employees feel "a sense of belonging, community, and worth in the workplace."

Q: Can an employer use race as a factor in hiring decisions?
A: Generally no, but with narrow exceptions. The Supreme Court in Weber (1979) and Johnson (1987) upheld voluntary plans that considered protected status in limited ways to remedy manifest underrepresentation, where the plan did not unnecessarily trammel rights of non-preferred employees and did not create an absolute bar to their advancement. Those cases remain good law after SFFA. Outside the Weber/Johnson framework, race-conscious selection decisions are generally unlawful under Title VII.

Q: What about disparate impact?
A: Title VII also prohibits facially neutral employment policies that disadvantage a protected class without business necessity. So employers need to monitor not just explicit categories but also the actual outcomes of seemingly neutral rules.

Q: Does this opinion apply to government contractors?
A: The opinion focuses on Title VII (which covers most public and private employers with 15 or more employees) and doesn't address the separate body of law that governs federal contractor affirmative action under Executive Order 11246. Government contractors should consult separate guidance for those obligations.

Q: Has any court since SFFA actually ruled DEI programs unlawful?
A: The opinion was issued in October 2023, soon after SFFA. It does not address subsequent litigation. Employers facing actual lawsuits or challenges should work with counsel to assess current case law in their jurisdiction.

Background and statutory framework

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), is the core federal statute on workplace discrimination. It makes it unlawful for an employer to fail or refuse to hire, discharge, or otherwise discriminate against any individual in compensation, terms, conditions, or privileges of employment "because of such individual's race, color, religion, sex, or national origin." That language, on its face, prohibits discrimination on those bases against any person, including in either direction (so-called "reverse discrimination" claims arise under the same provision).

Title VI of the Civil Rights Act, by contrast, prohibits discrimination in programs receiving federal financial assistance. It applies to entities like Harvard and UNC because they receive federal funds. It is the statute the Supreme Court interpreted in SFFA, alongside the Equal Protection Clause. Title VI's analysis follows Equal Protection doctrine: race-conscious decisions must satisfy strict scrutiny.

The opinion's central legal move is to distinguish these regimes. Equal Protection / Title VI strict scrutiny applies to admissions decisions at universities receiving federal funds. Title VII statutory analysis applies to employment decisions. The two are not interchangeable. The Supreme Court in SFFA was operating in the first frame; workplace DEI sits in the second.

The opinion supports this with the Supreme Court's own affirmative action precedents in the employment context. United Steelworkers v. Weber (1979) upheld a voluntary craft training program that reserved 50 percent of slots for Black workers, where the plan addressed "manifest underrepresentation" of Black workers in those positions, did not "unnecessarily trammel" the rights of white workers, and did not create an "absolute bar" to white advancement. Johnson v. Transportation Agency (1987) extended that framework to a sex-based plan in a municipal agency. Both decisions are still controlling law under Title VII, and SFFA did not purport to overrule them.

The EEOC, the federal agency tasked with enforcing Title VII, issued a public statement after SFFA confirming that employer DEI programs remain lawful. The opinion quotes Chair Charlotte Burrows directly: "It remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace."

The opinion's factual background section documents the underlying inequities that DEI programs are designed to address: a 17-percent gender pay gap (women earning 83 percent of men's median weekly earnings as of 2022), severe underrepresentation of women and women of color in C-suite roles (1 in 4 and 1 in 20 respectively), and Black and Hispanic employees reporting workplace discrimination at a 60 percent higher rate than white employees. These statistics frame DEI not as a controversial political project but as a response to documented workplace inequities.

The opinion is careful to leave space for the disparate-impact prong of Title VII: even facially neutral policies can be unlawful if they disadvantage a protected class without business necessity (42 U.S.C. § 2000e-2(k)(1)(A)(i)). That cuts both ways. Employers should monitor whether their DEI initiatives have any adverse impact on non-targeted employees, and also whether their non-DEI policies have unintended adverse impacts on protected classes.

Citations and references

U.S. Supreme Court cases:
- Students for Fair Admissions, Inc. v. Harvard College, 600 U.S. 181 (2023) (admissions decision)
- United Steelworkers v. Weber, 443 U.S. 193 (1979) (voluntary affirmative action under Title VII)
- Johnson v. Transportation Agency, 480 U.S. 616 (1987) (extending Weber to sex-based plans)

Federal circuit cases:
- Doe v. Kamehameha Schs., 470 F.3d 827 (9th Cir. 2006) (en banc) (Title VII and § 1981 framework)
- Shea v. Kerry, 796 F.3d 42 (D.C. Cir. 2015) (Title VII reverse discrimination analysis under Weber)

Statutory authority:
- 42 U.S.C. § 2000e-2(a)(1) (Title VII core prohibition)
- 42 U.S.C. § 2000e-2(k)(1)(A)(i) (disparate impact)
- 42 U.S.C. § 2000e-3 (retaliation)
- 42 U.S.C. § 1981 (analyzed under Title VII framework)
- Title VI of the Civil Rights Act of 1964 (federally funded programs; the SFFA statute)
- U.S. Const. amend. XIV (Equal Protection Clause)
- § 24-31-101(1)(a), C.R.S. (AG formal opinion authority)

Administrative guidance:
- EEOC Statement from Chair Charlotte A. Burrows, June 29, 2023 (DEI programs remain lawful under Title VII)
- Colorado Universal Policy, Equity, Diversity, and Inclusion in State Employment (Sept. 16, 2020)
- Exec. Order on Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce (June 25, 2021)

Source

• Landing page: https://coag.gov/attorney-general-opinions/
• Original PDF: https://coag.gov/app/uploads/2023/10/AG-Formal-Opinion-No-23-02.pdf

Original opinion text

PHIL WEISER
Attorney General

RALPH L. CARR
COLORADO JUDICIAL CENTER
1300 Broadway, 10th Floor
Denver, Colorado 80203
Phone (720) 508-6000

NATALIE HANLON LEH
Chief Deputy Attorney General
SHANNON STEVENSON
Solicitor General
TANJA WHEELER
Associate Chief Deputy Attorney
General

STATE OF COLORADO
DEPARTMENT OF LAW

FORMAL
OPINION
OF
PHILIP J. WEISER
Attorney General

Office of the Attorney General

No. 23-02
October 4, 2023

Philip J. Weiser, Attorney General of the State of Colorado, as chief legal representative for the State, issues this Formal Opinion pursuant to his authority under § 24-31-101(1)(a), (d), C.R.S. (2023).

QUESTION PRESENTED AND SHORT ANSWER

Question Presented.
(1) Are Diversity, Equity, and Inclusion programs ("DEI programs") used by employers now unlawful following the recently decided U.S. Supreme Court decision, Students for Fair Admissions, Inc. v. Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, 600 U.S. 181 (2023) ("SFFA")?

Short Answer.
(1) No. Workplace DEI programs were not addressed and were not held unconstitutional by the U.S. Supreme Court in SFFA. The SFFA decision evaluated the consideration of race in university admissions under a strict scrutiny standard, pursuant to the Equal Protection Clause of the United States Constitution and Title VI of the Civil Rights Act of 1964. It did not address employer DEI programs, which are governed by Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2 to 2000e-3.

FACTUAL BACKGROUND

It is widely acknowledged that discrimination—which the enactment of Title VII in 1964 was designed to address—has resulted in multi-generational economic and societal harm. These inequities are well documented and continue to manifest themselves in numerous ways in the workplace, including unequal pay, unequal unemployment rates, and disparate opportunities for hiring and promotion. For example:

• On average, women are paid less than men. As of 2022, the median weekly earnings of full-time working women were 83% of the median weekly earnings of full-time working men.

• Women, and particularly women of color, are less likely to hold executive positions. Only 1 in 4 C-suite executives are women, and only 1 in 20 C-suite executives are women of color.

• Black and Hispanic employees suffer workplace discrimination at a 60% higher rate than white employees. 24% of Black and Hispanic employees have responded to a survey stating that they suffered workplace discrimination in the prior year, compared to just 15% of white employees.

After a legacy of discrimination and unequal opportunities, it is far from the case that the passage of the civil rights laws placed everyone on equal footing with respect to business opportunities. To the contrary—the lack of access to social networks and mentoring opportunities has persisted for generations after formal exclusion policies have come to an end.

In order to combat these persistent inequities and achieve the benefits of a diverse workforce, public and private employers of all types have adopted DEI programs. These programs employ a range of tools to remove barriers to success for under-represented groups, and to achieve the goals of diversity, equity, and inclusion. For example, organizations may employ chief diversity officers who ensure that all employees enjoy access to mentoring and career development opportunities. Similarly, mentorship programs may be used to increase employee engagement and opportunities for advancement, especially among employees from historically disadvantaged communities that may otherwise lack informal access to mentoring. Employers, moreover, may target employee recruiting efforts and materials through diverse channels to ensure a diverse pipeline of applicants. And for existing employees, organizations may support employee resource groups—voluntary internal communities of employees with shared interests—that can help employees feel a sense of belonging, community, and worth in the workplace.

ANALYSIS

In the wake of SFFA, assertions have been made that the U.S. Supreme Court's decision held or otherwise implied that DEI programs are unconstitutional and illegal. These assertions misrepresent the Court's decision.

I. SFFA Did Not Address Employment Law.

In SFFA, the Supreme Court considered claims that the admissions processes used by Harvard University and the University of North Carolina (the "universities")—which considered an applicant's race as a "plus factor"—violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. Students for Fair Admissions, Inc. v. Harvard College, 600 U.S. 181, 213-14 (2023).

In analyzing these claims, the Court relied exclusively on case law developed in the context of university admissions programs to hold that admissions decisions that consider race as a plus-factor are permissible only if: (1) they comply with strict scrutiny; (2) they do not use race as a negative or a stereotype; and (3) they have an end point.

The Court found that the universities' admissions processes did not satisfy these criteria. The Court acknowledged, however, that "nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise." Id. at 230.

SFFA did not address the law governing consideration of race in the employment context, nor did it address the validity of DEI programs in hiring practices and in the workplace. Rather, the SFFA analysis was controlled entirely by prior case law confined to Equal Protection and Title VI claims in higher education admissions processes.

II. Under Title VII, Employers May Continue to Use DEI Programs.

Employer DEI programs remain valid under federal law. Both before and after SFFA, it was unlawful under Title VII for an employer:

to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a)(1). The U.S. Equal Opportunity Employment Commission ("EEOC")—the federal agency tasked with enforcing this law—has confirmed that SFFA does "not address employer efforts to foster diverse and inclusive workforces," and has advised that, under Title VII, "[i]t remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace."

Employer efforts to ensure that all employees receive access to the same opportunities in the workplace—not to "adversely affect" or "deprive" employees of opportunities—do not violate Title VII. For example, an organization's efforts to expand its outreach to historically unrepresented groups do not adversely impact other applicants for a position.

And, of course, Title VII requires that employers refrain from implementing policies, even if facially neutral, if such policies have a disparate impact on protected classes of employees and are not consistent with business necessity. 42 U.S.C. § 2000e-2(k)(1)(A)(i). Thus, employers can and should carefully monitor their policies to ensure that they are not inadvertently disadvantaging protected classes of employees through facially neutral policies.

Issued this 4th day of October, 2023.

PHILIP J. WEISER
Colorado Attorney General

Footnotes:

5 Employment actions may also be challenged under 42 U.S.C. § 1981. Such claims have been analyzed under the same framework as Title VII claims. Doe v. Kamehameha Schs., 470 F.3d 827, 836-40 (9th Cir. 2006) (en banc).

6 Equal Employment Opportunity Commission, "Statement from EEOC Chair Charlotte A. Burrows on Supreme Court Ruling on College Affirmative Action Programs," June 29, 2023, available at https://www.eeoc.gov/newsroom/statement-eeoc-chair-charlotte-burrows-supreme-court-ruling-college-affirmative-action.

7 In addition, the Supreme Court has long recognized that, under Title VII, employers may take protected status into account in employment decisions in certain limited circumstances. See United Steelworkers v. Weber, 443 U.S. 193, 208 (1979) (employer's voluntary plan to reserve 50% of training program spots for Black craftworkers permissible under Title VII because it sought to remedy manifest underrepresentation of Black workers in those positions, did not unnecessarily trammel the rights of white workers nor create an absolute bar to their advancement); Johnson v. Transportation Agency, 480 U.S. 616, 626-27 (1987) (municipal agency's plan that considered an applicant's sex as one factor in making promotions to positions in which women had been significantly underrepresented permissible under Title VII because it sought to remedy manifest underrepresentation of women in those positions and did not unnecessarily trammel the rights of male workers nor create an absolute bar to their advancement); Shea v. Kerry, 796 F.3d 42, 51, 53 (D.C. Cir. 2015) ("For nearly thirty years, we have examined Title VII challenges to affirmative action programs under the standards set forth by the Supreme Court in [Weber] . . . . For nearly three decades, Johnson has guided . . . the analysis of Title VII claims alleging unlawful reverse discrimination.").