“Racial discrimination still occurs, and the effect of past racial discrimination still persists.” See Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Case Nos. 20-1199, 21-707 (June 29, 2023) (Kavanaugh, J., concurring) (hereinafter SFFA). In the wake of the U.S. Supreme Court’s monumental decision in SFFA affecting affirmative action in the college admissions process, the legal community, organizations, and employers alike are scrambling to determine the legal or practical relevance, if any, this decision may have on diversity, equity, and inclusion (hereinafter referred to as DE&I) initiatives outside of higher education. In SFFA, the majority held that Harvard and UNC’s admissions processes violated the equal protection clause of the Fourteenth Amendment because they explicitly consider race. Even in the wake of the SFFA decision, most corporate DE&I initiatives and policies remain lawful, so long as they comply with federal anti-discrimination statutes including Title VI, Title VII and 1981.

The concept of DE&I holds different meanings for different individuals. However, there is no better time than now for organizations to prioritize the inclusion component as the driving force in their DE&I initiatives because inclusion ensures that diversity is not just present, but also valued and embraced. Inclusion focuses on an employee’s experience in the workplace and the degree to which an organization recognizes, respects, supports, and values the perspectives of all employees, regardless of position. As a diverse attorney practicing law in a nondiverse career, I have realized that even when an organization possesses a diverse employee population, a robust DE&I policy or initiatives, it will likely face challenges in achieving sustainable performance outcomes without fostering an inclusive environment because their diverse workforce will be short-lived. Inclusive environments empower individuals to openly express their ideas, question assumptions, and contribute their diverse perspectives. This rich diversity of thought and experience fosters innovation and creativity, as multiple viewpoints are acknowledged, embraced, and integrated into the decision-making process, ultimately leading to different and creative solutions.