The Future of Affirmative Action EverywhereAug 22, 2023
How the Supreme Court’s decision for colleges and universities impacts employers
Since the United States Supreme Court (USSC) ruled that using race in college and university admissions is unconstitutional, there has been a growing wave of challenges to employer DEI (diversity, equity, and inclusion) programs. Employers must prepare themselves for these challenges — and make decisions about protecting themselves — while advancing their genuine, good-faith, and legal DEI initiatives.
In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199, together with Students for Fair Admissions, Inc. v. Univ. of North Carolina, No. 21-707 (June 29, 2023), the court ruled that Harvard and UNC’s affirmative action programs made admissions decisions based on race and color and that these decisions were in violation of the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.
No impact on private employers… yet
The laws about affirmative action in employment haven’t changed yet. Race-based employment decision-making, as a general matter, is unlawful under Title VII of the Civil Rights Act of 1964 but, over the years, the Supreme Court has made exceptions under certain circumstances. These circumstances have included such things as “voluntary, temporary, remedial affirmative action programs” that seek to hire “historically underrepresented minorities” (United Steelworkers of America v. Weber) and affirmative action plans that considered sex in order “to address traditionally segregated job classifications” (Johnson v. Transp. Agency, Santa Clara Cnty).
While the USSC’s June decision applies only to the admission decisions of educational institutions that accept “federal financial assistance,” a clear path has been created for future legal challenges to “affirmative-action-like” employment hiring practices.
Justices Thomas and Gorsuch, in their concurring opinions, said that Title VII similarly does not countenance race- or sex-conscious decision-making. Justice Gorsuch said he “sees no daylight between the anti-discrimination provisions of Title VI and Title VII.” They are “neighboring provisions of the same statute — enacted at the same time by the same Congress.”
Attacks on DEI programs are underway
Just a few weeks after the Supreme Court’s momentous decision in June, the Attorneys General of thirteen states — Alabama, Arkansas, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, South Carolina, Tennessee, and West Virginia — sent a letter to the CEOs of Fortune 100 companies. The letter said that these employers could be in violation of Title VII of the Civil Rights Act of 1964 and that “the Supreme Court’s recent decision should place every employer and contractor on notice of the illegality of racial quotas and race-based preferences in employment and contracting practices.”
On July 17, Senator Tom (R-Arkansas) sent a letter to over fifty law firms, which carried explicit warnings to not only those law firms, but also their clients. “To the extent that your firm continues to advise clients regarding DEI programs or operate one of your own, both you and those clients should take care to preserve relevant documents in anticipation of investigations and litigation.”
The EEOC responds
Immediately following the Supreme Court’s affirmative action ruling, the United States Equal Employment Opportunity Commission (EEOC) issued a statement making it clear that it remains lawful to implement DEI programs.
“The decision… does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background. It remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”
Under the EEOC’s guidelines about voluntary affirmative action, employers are encouraged to take voluntary steps to “correct the effects of past discrimination and to prevent present and future discrimination.”
Confusion over DEI and Affirmative Action reigns
Part of the problem is that affirmative action means different things to different people. According to Pauline Kim, an affirmative action expert at the Washington University in St. Louis School of Law, there is much confusion about what affirmative action entails today and how it has evolved into something much more complex and closely aligned with an employer’s overall business goals.
In this VOX interview about the future of affirmative action in the workplace, Kim described the historical affirmative action practice of reserving a spot for someone from a racial minority group. “Universities and employers have long since abandoned that practice,” Kim said. Affirmative action has come to mean “a program or policy, where the effort is to diversify either the university class or the workforce, where race or sex is taken into account as a positive.”
“Sometimes people also use the term affirmative action to mean taking any kind of step that will help improve racial equity or the diversity of a pool,” Kim continued. “That’s why many firms now refer to [these programs] as DEI initiatives rather than affirmative action. So part of the confusion that comes in is that people think that they’re the same thing. There are people on the right who attack DEI programs, equating them with something like a racial quota when they are completely different. They don’t involve race in individual decisions at all.”
Employers can’t say, “We plan to hire 25 percent of workers of color out of all our hires next year.” That’s not permissible. But employers can say they value diversity and will look for diverse candidates. Employers can say they’re examining their policies and practices to ensure they promote equity and inclusion and are fair to everybody.
According to Kim, an employer with broad, aspirational hiring and promotion goals is not a basis for anyone who doesn’t get hired or promoted to say, “Oh, I wasn’t hired (or promoted) because of my race.”
What should employers do?
Evaluate and Eliminate. Review your voluntary DEI programs and ensure they comply with the law. Eliminate mandates or directives that favor or target specific groups for hiring or promotion. Eliminate numerical targets such as “15 percent of this team must be [a specific demographic.]”
Review DEI Communications. Be cautious in both internal and external DEI-related communications. Avoid making statements that could be characterized as a violation of the law. Be clear that the company is committed to inclusion for all.
Expand Recruitment Efforts. If colleges and universities become less diverse, it will directly impact the talent pool available to employers. Decreasing diversity will impact some schools more than others. Employers committed to maintaining a diverse applicant pool should consider reevaluating where they are looking for applicants.
Train for Compliance. This would be an excellent time to update your diversity, anti-discrimination, anti-harassment, and other implicit bias trainings. These trainings are essential for hiring managers and recruiters.
Be Cognizant of State and Local Regulations. Some states and municipalities have enacted their own anti-discrimination laws. Many laws prohibit discrimination based on characteristics such as family status, caregiver status, and socioeconomic status not covered under federal law. Recently, some states have enacted specific “anti-DEI” statutes, like Florida’s “Stop Woke Act,” which prohibits teaching about certain concepts related to race, color, national origin, or sex.
Seek Counsel. If you have any questions about your current affirmative action and DEI initiatives — or have been threatened with litigation because of these initiatives — seek help from legal counsel. Orr & Reno’s employment law team is always available to provide assistance when you need it.