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Abstract: In 2023, the Supreme Court invalidated the use of race in the admissions practices of Harvard University and the University of North Carolina in a case known as Students for Fair Admissions v. Harvard. Immediately following that decision, dozens of cases and inquiries were filed challenging the employment practices of private employers under the notion that the Supreme Court's decision had effectively prohibited any efforts to diversify a workforce. But these recent challenges ignore the long history of workplace affirmative action which differs significantly from the educational setting where a diverse student body was seen as essential to creating an intellectual community. Private employers have long had substantial leeway to engage in practices to create and maintain a diverse workforce, now done primarily under the rubric of Diversity, Equity and Inclusion better known as DEI as opposed to affirmative action. This Essay will explore the older Supreme Court cases, how those cases have been interpreted over the years by lower courts, the move from affirmative action to DEI, and the limited effect the recent Supreme Court case should have on workplace diversity. Finally, I will discuss the recent cases and show that most of the cases resemble older cases alleging reverse discrimination and that most of the challenges to date have failed, leaving private employers with freedom to continue with their DEI practices.
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