Should Employers Be

Concerned about SCOTUS’s Affirmative Action Decision?

By JILL EVERT

Civil Rights Act of 1964, which does not apply in college admissions, protects all employees and job applicants from discrimination based on race, color, religion, sex and national origin, without regard to minority and majority groups. Similarly, Executive Order 11246, which applies to federal contractors and can require affirmative action plans to increase diversity based on industry, prohibits discrimination based on race. This has long meant that employers cannot select any applicant based on race, and cannot consider race as a factor in employment decisions. For example, if two applicants have similar qualifications, an employer cannot place a finger on the scale of either candidate because of their race, ethnic background, or gender group; not even in part, and not even if that group is underrepresented in the workspace.

In recent years, however, IE&D programs have become staple corporate initiatives, as companies have found that their employees thrive in racially and culturally diverse work environments. Many companies rightfully tout statistics showing increased minority and female representation among their ranks. Indeed, many applicants expect prospective employers to have developed IE&D programs and many candidates factor diversity into their own decisions about which companies they choose to seek and accept employment with.

In June, the Supreme Court struck down college and university practices considering race in student admissions. The ruling, which will undoubtedly mark a sea change in education policies in the United States, has many employers wondering: what’s next for their Inclusion, Equity, and Diversity programs?

The History of Race-Conscious College Admissions

SCOTUS first addressed race in college admissions in its 1978 decision, Regents of the University of California v. Bakke. There, the Court held that, while race quotas were unconstitutional, colleges could consider the race or ethnic background of applicants as a “plus” factor in whether a student should be admitted. The Bakke decision was intended to combat decades of race disparity in higher learning and ushered in an era of race-conscious admissions. But it was not without challengers. The Court reaffirmed its precedent in 2003, again finding that affirmative action in admissions practices was permissible, although Justice Sandra Day O’Connor suggested that the practices would not be necessary “25 years from now.” Affirmative action in admissions was challenged again, and upheld again, in 2016.

O’Connor’s foretold expiration date came this year, when the Court decided a pair of cases, Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. In the UNC and Harvard cases, a six-justice majority overturned the Court’s prior rulings to find that race-conscious admissions practices that provide a “plus” to minority applicants violate the Equal Protection Clause of the Constitution’s Fourteenth Amendment. Universities may still consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise” in entrance essays.

The Impact of the UNC and Harvard Decisions on Employers

Unlike universities, private employers have not historically been permitted to actively consider race in hiring decisions. The Fourteenth Amendment does not apply to private companies and Title VII of the

Given that Title VII prohibits active consideration of race in hiring decisions, HR and hiring managers sometimes walk a fine line between championing diversity in the workplace and making fair and lawful decisions when it comes to extending offers. The UNC and Harvard decisions will not change that line. However, the increased attention on race and entry decisions may see IE&D programs (and affirmative action plans for contractors) challenged on parallel grounds, with opponents arguing that they favor or provide more opportunities to certain groups. Companies may also see a rise in “reverse discrimination” claims – allegations brought by white (or male) employees and applicants claiming that they lost job opportunities or promotions to members of minority groups.

What Employers Can Do to Maintain Their IE&D Programs in an Era of Scrutiny

Employers need not, and should not, scrap their IE&D initiatives. Indeed, the EEOC recently made the following statement:

“Diversity helps companies attract top talent, sparks innovation, improves employee satisfaction, and enables companies to better serve their customers. However, the decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina 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.”

The EEOC’s stance makes clear that employers can work to expand IE&D programs, but the fact remains that they must be careful not to cross over into hiring practices that run afoul of Title VII. So, what can employers do?

• A chief measure that employers can take is to foster diversity in applicant pools. In recruiting, for example, companies can target outreach to diverse communities – think inviting applicants from

Historically Black Colleges and Universities (HBCUs) and high schools with high minority populations. They can implement “colorblind” screening procedures, such as providing neutral, uniform questions on applications and in interviews. On the other hand, leaders should avoid making statements that imply a racial or gender quota will be met.

• In hiring, employers can ensure that managers are trained to make fair, unbiased decisions. All decisionmakers should be versed on the anti-discrimination laws and understand that discussions about race, gender, and ethnic background in hiring must be avoided –including if race is viewed as a positive factor for a candidate. In all hiring and promotions, employers should train decisionmakers to support decisions with neutral reasons based on business-related criteria. Of course, the same standards apply to all decisions affecting the terms of employment, including demotions, disciplinary actions, and terminations.

• In promotions, companies can expand efforts to notify employees of opportunities for advancement and encourage broad applications for open positions, training programs, and other initiatives. They can implement systems to ensure promotions are awarded based on past performance. If possible, HR can review hiring and promotions decisions to ensure that fair practices were applied.

• With existing workforces, companies can work to create inclusive workspaces and celebrate employees from all backgrounds. They can provide training and discussion to foster diversity, including discussion on inherent bias and minority leadership. Employers can also continue to support affinity groups that focus on development for members.

• Employers can continue to implement and enforce robust EEO and anti-discrimination policies ensuring fair opportunities for all. Policies should include mechanisms for employees to report discrimination and harassment, and leaders and HR should be trained on how to appropriately handle complaints.

• HR must keep an eye on local developments, as some states –notably Texas and Florida - are increasing efforts to pass legislation that could limit IE&D programs.

• HR and leaders must take complaints of reverse discrimination seriously and investigate them the same as complaints made by members of underrepresented groups. If a company finds itself a party to a formal Charge of Discrimination or lawsuit based on reverse discrimination, it should seek legal advice.

In summary, while the decision will alter the landscape of college admissions, its impact on private employers is indirect. However, it could cause a ripple effect of increased challenges to IE&D programs and hiring or promotion decisions. Companies should treat this as an opportunity to examine their initiatives and programs to ensure that diversity efforts continue within the bounds of the law.

Jill Evert is an employment attorney with Littler. If you have any questions about this subject or other employment matters, contact her at jevert@littler.com. This article is for informational purposes only and not intended to substitute for legal advice.