The possible fate of affirmative action is at the forefront of U.S. Supreme Court watchers' attention this term. The general consensus among legal scholars and academics ranges from "concern" that the Court may be primed to strike down affirmative action in higher education admissions to "virtual certainty" that the Court's impending decisions in the two cases before it, Students for Fair Admissions v. President & Fellows of Harvard and Students for Fair Admissions v. University of North Carolina et al., will outlaw race-conscious admissions practices. Our colleagues previously wrote about the background of the Supreme Court's affirmative action jurisprudence in higher education admissions and the potential implications of striking down the decades-old precedent in Grutter v. Bolinger and its predecessor, Regents of the Univ. of Calif. v. Bakke, here. As the law currently stands, institutions are permitted to consider race as part of a holistic view of a student applicant pursuant to a narrowly tailored program designed to achieve the goal of a diverse student body. This latitude may be constricted or even lost when the Court renders its decision in the Harvard University and University of North Carolina cases this term. Although the two cases before the Court deal with collegiate admission decisions, the Court's decisions in those cases may also have farther-reaching ramifications for diversity efforts in employment.
The Supreme Court showed a willingness to change course regarding affirmative action preferences. For example, questions posed by the justices during the arguments in the university cases suggest the Court could further limit or ban any preferential consideration of race in admissions decisions. To illustrate, during oral argument on November 1, 2022, Justice Thomas expressed skepticism that inclusion of racial diversity provided any educational benefits to students. Justices Kavanaugh and Barrett focused on Grutter's dicta expressing an expectation that any ongoing need for affirmative action may cease in or around 2028, possibly implying that by then, diversity goals should be sufficiently "achieved."
Overturning Grutter, or drastically limiting its narrow allowance of race consciousness as part of an affirmative action effort in college admissions, will likely send shock waves through the higher education world. But, depending on the reasoning of the Court in these cases, there could be ramifications outside of the higher education context that affect diversity and recruitment initiatives in the private employment sector. As every employer knows, federal, state, and sometimes local laws contain various prohibitions on making employment decisions on the basis of race and other protected characteristics. In addition, certain federal contractors and subcontractors are required to have plans intended to eradicate conspicuous imbalances due to past discrimination in employment. Such plans are known as Affirmative Action Plans. Voluntary adoption of affirmative action measures by private employers has historically been legally risky, subjecting the employer to possible reverse discrimination claims. Diversity, equity, and inclusion (DEI) initiatives are unquestionably laudable goals, but private employers may still not adopt race conscious affirmative action policies merely because they view it as moral or wish to further increase the diversity of their workforce.
It is possible that affirmative action as we have understood it will become unavailable after the Supreme Court's decisions in the university cases. The potential of newly imposed restrictions, a phasing out, or an immediate ban on the use of affirmative action raises important questions for employers: If the Court decides affirmative action measures are no longer permissible, what can employers do to safely promote their own DEI efforts? The Court's decision may be limited in scope to only education institution admissions decisions, or it may instruct that affirmative action considerations will be phased out over time. It may also be broader and call for the end of affirmative action in any context, although this may be unlikely.
What is certain for employers is that they will need to be prepared to rethink how they approach DEI and recruitment efforts. This will include, at a minimum, conducting a thorough review of marketing materials, including the scope of outreach and job postings to ensure recruiting includes diverse candidate pools; a review of hiring procedures and position qualifications; the use of diverse interviewers; and training of employees involved in the hiring process, for awareness of possible bias and to ensure that legally permitted information is considered to achieve non-discriminatory decisions. Similar introspection should occur regarding promotion and termination processes. Last, although there are many other things that can be done, employers should not neglect to inform employees of their commitment to DEI.
Employers with questions or concerns about the potential risks for implementing DEI or recruitment initiatives in their workforce should contact the authors of this article or any other members in Venable's Labor and Employment Group.