Colorado Attorney General Issues Formal Opinion Discussing the Legality of Employer DEI Programs

Adrian Sanchez, Law Clerk

Following the United States Supreme Court’s recent decision in Students for Fair Admissions, Inc. v. Harvard College (“SFFA”), Colorado Attorney General Phil Weiser issued a formal opinion on October 4, 2023, in response to questions and concerns regarding the legitimacy of diversity, equity, and inclusion (DEI) programs in the employment context.

 Attorney General: Employer DEI Programs Remain Lawful

Prior to the Supreme Court’s decision in SFFA courts generally held that student body diversity and the educational benefits that flow from a diverse student body (such as the promotion of cross-racial understanding and empathy) were compelling governmental interests that could justify the consideration of race in college admissions.  But, in deciding SFFA, the Supreme Court now holds that race-conscious admissions programs at universities and colleges are unlawful and in violation of both Title VI of the Civil Rights Act of 1964 and the Constitution's Equal Protection Clause.[1]  The Court reasoned that “[e]liminating racial discrimination means eliminating all of it,” implying that race-conscious college admissions programs discriminated against students who did not benefit from student body diversification efforts.[2] 

Following the Court’s decision, some politicians, employers, and commentators have surmised (or at least suggested) that the logic in SFFA extends to the workplace and that employer DEI programs that affect employment decisions are likewise unlawful.  In Formal Opinion No. 23-02, Colorado Attorney General Phil Weiser expressed his disagreement with extending the Court’s logic to the employment context.  Weiser noted that the Court’s analysis in SFFA was limited to the legality of race-conscious college admissions programs, and the Court did not address the law governing consideration of race in the employment context nor the validity of employer DEI programs.  Moreover, Weiser pointed out that DEI programs are governed by Title VII of the Civil Rights Act of 1964, and not Title VI or the Equal Protection Clause, which were addressed in SFFA. 

  Weiser went on to comment that employer DEI programs, in his opinion, are an appropriate measure under Title VII since Title VII has long been intended to address the residual impacts of discrimination and ongoing inequities in the workplace.  Indeed, Weiser noted, the Equal Employment Opportunity Commission has concurred that DEI programs remain lawful in order to guarantee that all employees are offered equal opportunities in the workplace.  Accordingly, Mr. Weiser clarified that, in his opinion, DEI programs remain lawful under federal law, stating that assertions to the contrary misrepresent the scope and reach of the Court’s decision in SFFA.

 Considerations for Colorado Employers

Employers should be cognizant that while DEI programs are still considered legal, such programs cannot overreach and act to deprive or adversely affect employee opportunities on the basis of race or other protected characteristics.  Likewise, under Title VII, employers should ensure that any facially neutral policies or programs do not result in disparate impacts on protected classes of employees.  As always, Campbell Litigation is available to assist employers with DEI initiatives and other workplace policies.

[1] Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 143 S. Ct. 2141 (2023)

[2] Id.