The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2024”.

In June 2023, the U.S. Supreme Court held that Harvard University and the University of North Carolina’s admissions programs, which considered candidates’ race in admission decisions, violated the Fourteenth Amendment of the U.S. Constitution and Title VI of the Civil Rights Act of 1964.  While these decisions, known collectively as SFFA, do not apply to a corporation’s employment decisions, language in the Court’s opinion has led many to speculate as to how the precedent could potentially be expanded to this context.  The Court’s majority noted that the language of Title VII of the Civil Rights Act, which, broadly speaking, bars discrimination in employment decisions, is almost identical to corresponding language in Title VI.  Notably, in writing a concurrence joined by Justice Thomas, Justice Gorsuch observed that Title VII is “[j]ust next door” to Title VI, and noted that the majority opinion tracks the Supreme Court’s prior rulings interpreting “materially identical language in Title VII,” prompting Justice Gorsuch to ask rhetorically whether it makes sense to “read the same words in neighboring provisions of the same statute—enacted at the same time by the same Congress—to mean different things?” 

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2024”.

Companies today face more pressure to speak on social and political issues than ever before. With the constant barrage of issues, the consequences of any course of action can be hard to predict. Speaking up can risk backlash for saying the wrong thing, but refraining from speaking at all may no longer be a reliable way to stay above the fray and avoid criticism. Companies may conclude that, when it comes to issues of great importance to their stakeholders, silence is no longer an option. One question that follows for boards and management, then, is whether they can break the silence without breaching their fiduciary duties.

Cleary Gottlieb partner Francesca Odell was interviewed by the Rock Center for Corporate Governance at Stanford University about the board of directors’ role in corporate DEI initiatives in light of recent Supreme Court decisions on affirmative action.

To view the interview, click here or in the window below.