Attorney General Legal Opinion: Diversity, equity and inclusion efforts remain legal under federal law

Oct. 4, 2023 (DENVER) – Diversity, equity, and inclusion programs that employers implement to ensure individuals from all backgrounds are offered equal opportunities in the workplace are not illegal according to a formal legal opinion Attorney General Phil Weiser issued today.

Weiser issued the legal opinion to respond to questions and concerns about the constitutionality of DEI programs in the wake of the recent U.S. Supreme Court decision in Students for Fair Admissions, Inc. v. Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina. In the opinion, the Court ruled that race-conscious admissions programs at colleges and universities are unlawful and violate the Equal Protection Clause of the U.S. Constitution and Title VI of the Civil Rights Act as it pertains to college admissions processes.

The Court’s decision in Students for Fair Admissions did not, however, address the legality of DEI programs in workplaces, Weiser said, which are governed by Title VII of the Civil Rights Act of 1964. DEI efforts therefore remain legal under federal law.

“In the wake of the Students for Fair Admissions opinion, incorrect assertions have been made that the U.S. Supreme Court’s decision ruled or otherwise implied that DEI programs in all contexts, specifically workplaces, are unconstitutional and illegal. These assertions have no basis in the Students for Fair Admissions case, which was limited to addressing college admissions; these claims, moreover, misrepresent the Court’s decision, which did not address employment law,” Weiser said. “Programs that seek to promote workplace diversity, equity, and inclusion—and that do not consider protected class status in decision making—remain legal. And employers may continue to use DEI efforts to afford equal opportunity to all workers and to reap the benefits of a diverse workplace.”

It is widely acknowledged that discrimination has resulted in multigenerational economic and societal harm. These inequities are well documented and continue to manifest themselves in numerous ways in the workplace. Unemployment, for example, is higher among Black and Hispanic workers according to a 2023 report by the Economic Policy Institute. Median earnings for women in 2022 were 83% of the median for men, data from the U.S. Bureau of Labor Statistics shows, and women, particularly women of color, are less likely to hold executive positions. And a 2021 Gallup survey revealed that 24% of Black and Hispanic employees reported discrimination at work.

To combat these persistent inequities and achieve the benefits of a diverse workforce, public and private employers of all types have adopted DEI programs, recognizing that past denials of opportunities can have lasting impacts. These programs include a range of tools to achieve the goals of diversity, equity, and inclusion, including mentoring and career development opportunities, conducting recruiting and outreach to diverse communities, and establishing 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.

Weiser concluded by saying: “Research demonstrates compelling reasons for why public and private employers would be interested in better meeting the needs of an increasingly diverse world. Organizations with diverse teams are more profitable and companies with diversity across the board are more innovative. The law permits DEI efforts to achieve these benefits of diversity, and employers should periodically review their policies to ensure they are in compliance with the law.”

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Media Contact:
Lawrence Pacheco
Chief Communications Officer
(720) 508-6553 office | (720) 245-4689 cell
lawrence.pacheco@coag.gov