Considering race in college admissions is legally impermissible, according to the U.S. Supreme Court’s recent affirmative action decision. But what does this mean for employers?
The Court’s decision left more questions than answers. While the decision involved affirmative action in college admissions and not employment, the Court’s sweeping language already has been used to challenge employment decisions and even programs focused on promoting diversity, equity, and inclusion. Employers should remain vigilant.
Students for Fair Admissions, Inc. v. President & Fellows of Harvard College1 involved challenges to the admissions processes at Harvard College (Harvard) and the University of North Carolina (UNC). Both institutions considered race in the admissions process to increase and maintain diversity on their college campuses. In their view, diverse student bodies brought varied perspectives and promoted innovation, creativity, and prepared future leaders to work in a pluralistic society. Relying on earlier Supreme Court precedent concluding that racially diverse student bodies present educational benefits, both institutions considered race in their admissions process. Neither used a quota system or used race to foreclose an individual from all consideration. Instead, both viewed their process as taking a holistic approach to college admissions.
A nonprofit organization, Students for Fair Admissions (SFFA) sued, arguing these admissions processes violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
In a 6-3 majority opinion, the Court held that the admissions processes used by Harvard and UNC failed to pass constitutional muster for three reasons:
Having struck down these admissions programs, the majority opinion concluded with warnings and guidance. Institutions are free to consider an applicant’s discussion of how race affected their life, be it through discrimination or inspiration. Institutions cannot, however, use personal statements or other diversity factors as a smokescreen to consider race. Any discussion related to race must directly relate to a race-neutral characteristic, like courage, determination, or leadership abilities, according to the majority opinion.
While the majority opinion focused on the admissions process and not “affirmative action” in general, the separate concurrences penned by Justices Thomas and Gorsuch did not. Justice Thomas took aim at “affirmative action” programs, and even insinuated programs focused on equity are problematic. Justice Gorsuch observed that the statute at the heart of Students for Fair Admissions mirrors its neighboring statute, Title VII of the Civil Rights Act, which governs employers.
Although not directly impacted by the Supreme Court’s ruling, employers with affirmative action programs should take note. Under federal law, private employers can voluntarily establish remedial affirmative action programs under very limited circumstances.2 Certain federal workforces and private contractors are required to establish affirmative action programs.3 Even under these programs, however, employers may not utilize blanket “plus factors,” quotas, or preferences.
Federal contractors likewise should keep a close eye on developing law as they maintain their existing affirmative action obligations under Executive Order 11246 and guidance from the Office of Federal Contractor Compliance Programs (OFCCP). In particular, some contractors must develop goals related to underrepresented groups. It is possible that such goals will be challenged in court as impermissible or illegal quotas.
Many states have laws concerning employment discrimination and affirmative action initiatives as well. For example, Washington,4 Oregon,5 and California6 all have laws that prohibit discrimination or preferential treatment based on protected characteristics. Affirmative action initiatives can be voluntarily undertaken by private employers in these states, subject to limitations. However, each state has unique requirements in other contexts that must be considered:
In addition to the above prohibitions and requirements, the framework for establishing a legally compliant affirmative action plan is highly complex and should be developed in consultation with legal counsel, especially for government employers and federal or state contractors.
Students for Fair Admissions involved an affirmative action program and not employer programs furthering diversity, equity, and inclusion, or “DEI” programs. DEI programs aim to foster and engage all qualified workers, regardless of background. Although some DEI programs may have an affirmative action component, these two concepts are not co-extensive. For these reasons, the Students for Fair Admissions decision should not impact an employer’s DEI efforts, as EEOC Chair Charlotte A. Burrows stated in a June 29 press release responding to the decision.
Nevertheless, in the short time since the Court decided Students for Fair Admissions, the decision has been relied upon several times to challenge DEI programs. For example, one U.S. Senator sent a letter warning law firms and companies that their DEI programs must comply with the new decision. Likewise, EEOC Commissioner Andrea Lucas warned organizations “to take a hard look” at their diversity programs and avoid making any “race-conscious employment actions.” Most recently, several law firms were sued for their DEI programs. And closer to our firm’s Northwest home, a former employee has sued the City of Seattle claiming, among other things, that the City maintains race-based affinity groups that violate the Fourteenth Amendment’s Equal Protection Clause. The federal court has allowed the lawsuit to proceed for now, relying on Students for Fair Admissions, and calling for further factual development. Diemart v. City of Seattle, Case No. 2:22-cv-1640 (W.D. Wash. August 28, 2023).
Lane Powell’s team of labor and employment attorneys is here to help your organization comply with state and local laws and develop and implement the strategy that supports your business and your employees. For more information, contact Katheryn Bradley or Priya Vivian, or visit our firm's Labor, Employment, and Benefits page. Keep up-to-date by subscribing to Lane Powell’s Legal Updates and register for our upcoming seminar on October 6 in Seattle.
1 No. 20-1199, 2023 WL 4239254 (U.S. June 29, 2023).
2 29 C.F.R. § 1608.4.
3 41 C.F.R. § 60-1.4(1).
4 RCW § 49.60 et seq.
5 ORS § 659A et seq.
6 Cal. Gov. Code § 12900 et seq.
7 Executive Order 22-02.
8 ORS § 659A.012-.015.
9 Proposition 209 amended the California State Constitution.
10 U.S., No. 22-193, cert. granted 6/30/23.
11 U.S., No. 22-231, cert. pending.
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