What Employers Need to Know in Light of the Supreme Court’s Opinion on Affirmative Action

In Students for Fair Admissions v. Harvard and Students for Fair Admission v. University of North Carolina, the United States Supreme Court struck down the holistic race-conscious admissions programs at Harvard and UNC as violating the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.

In doing so, employers everywhere are likely to wonder: How does this impact my workplace?

1. Does the decision directly implicate Title VII or other employment laws?

No. The Court decided these decisions under the Equal Protection Clause and Title VI. They do not address employment practices under Title VII of the Civil Rights Act or other federal civil rights laws governing employment.  These decisions are, however, expected to have significant ramifications for employers. In addition to the Court adopting a broad ruling in favor of race neutrality, Title VII (governing employment) is often interpreted under similar standards as Title VI (which applies to institutions that receive federal funds). Employers would be wise to closely monitor the impact of these decisions with respect to their particular affirmative action and diversity, equity, and inclusion (“DEI”) plans and policies with the benefit of legal counsel who understand the key differences among these laws.

2. Do employers need to stop using race with respect to hiring and other employment decisions?

Yes, and this was the law prior to the Court's recent decisions. It has long been the law that employers cannot consider race or any protected class (i.e., gender, religion, sexual orientation, disability, age, etc.) when hiring workers under federal and state law. Employers have never been permitted to use a holistic approach of considering race as one of many factors when selecting a candidate for employment.

3. Will I need to change my practices with respect to affirmative action and diversity, equity and inclusion programs?

Affirmative Action programs required of federal contractors pursuant to Executive Order 11246 and the requirements of the Office of Federal Contract Compliance Programs will not be impacted. Affirmative action in employment for federal contractors emphasized targeted recruitment efforts designed to increase diversity in the applicant pool. It does not mean giving any group a priority or preference.

Employers who are actively pursuing diversity, equity, and inclusion initiatives should regularly audit their recruiting and hiring practices for legal compliance. Avoid unlawful practices, such as racial quotas or set-asides that expressly use race to determine hires. Lower risk activities, such as cultural celebrations or inclusive diversity training will not run afoul of the Court's recent decision, even if applied to the employment context. For everything in between, analysis by a company’s leadership with the advice of legal counsel of the company’s specific practices and policies, including whether or how a company is using demographics metrics, will provide assurance to stakeholders that the company is intentionally and carefully pursuing its DEI goals within the bounds of the law.

Chief Justice Roberts explained in the Harvard and UNC cases, however, that “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.” (Pp. 39-40)  Employers should take a cue from this by ensuring that their hiring selections are steeped in the skills and competencies required of a qualified candidate, and not based on race—either in whole or in part.

Don’t delay this audit either. Employers who fail to honestly evaluate their practices may find themselves at risk for becoming a test case in this evolution of civil rights jurisprudence. A thoughtful, legally reviewed plan for DEI will offer employers engaged in that work the best chance of achieving their DEI goals in the service of their clients and customers.