07/04/2023
The Supreme Court’s Impact on Employer Affirmative Action Programs.
by Bryan A. Chapman, Esquire
The Supreme Court’s ruling that bars the use of race as a factor in college admissions, aka affirmative action, will impact race-conscious diversity initiatives used by corporations, such as, diversity, equality and inclusion programs, aka DEI.
The Supreme Court’s decision applies exclusively to college admission; however, the decision will encourage reverse discrimination lawsuits against corporations that have race-conscious diversity initiatives.
Furthermore, if barring the use of race in college admissions means a less diverse student body, then college graduates who are applying for jobs are likely to be less diverse.
President Lyndon Johnson established affirmative action in 1965 through Executive Order 11246. Today, Executive Order 11246 “requires affirmative action and prohibits federal contractors from discriminating on the basis of race, color, religion, s*x, s*xual orientation, gender identity, or national origin.”
Race-conscious diversity initiatives, such as DEI, are governed by Title VII of the Civil Rights Act of 1964, which generally makes the use of race in employment decisions illegal.
However, the Supreme Court has approved race-conscious diversity initiatives under specific circumstances. To end workplace affirmative action, the Court would need to overrule two of its longstanding precedents: United Steelworkers v. Weber (1979) and Johnson v. Transportation Agency (1987), which authorized affirmative action under Title VII.
In United Steelworkers of America, AFL-CIO-CLC v. Weber et al., 443 U.S. 193, 209 (1979), the Supreme Court stated the following, “We conclude, therefore, that the adoption of the Kaiser-USWA plan for the Gramercy plant falls within the area of discretion left by Title VII to the private sector voluntarily to adopt affirmative action plans designed to eliminate conspicuous racial imbalance in traditionally segregated job categories.”
In Local Number 93, International Association of Firefighters, AFL-CIO, C.L.C. v. City of Cleveland et al., 478 U.S. 501, 516-517 (1986), the Court stated the following, “ Accordingly, we held that Title VII permits employers and unions voluntarily to make use of reasonable race-conscious affirmative action…”
In summary, these cases stated that race-conscious employment affirmative action programs must be narrowly tailored to eliminate conspicuous racial imbalance, must not impede the interests of non-minority workers, and must be used as a temporary measure.
Charlotte Burrows, Chairman of the Equal Employment Opportunity Commission, released the following statement in reaction to the Students for Fair Admissions 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.”
Andrea R. Lucas, an EEOC commissioner, says:
“Since the 1970s, the Supreme Court has authorized employers to consider race (and s*x) only in very limited circumstances as part of voluntary, remedial affirmative action plans. These remedial plans must be temporary, narrowly tailored to the company or industry at issue, and justified by a ‘strong basis in evidence’ that remedial action is necessary.”
Race-conscious diversity initiatives are probably safe for the time being. Nonetheless, these initiatives, such as, DEI, will come under heighted scrutiny. There will be more reverse discrimination lawsuits.
Most employers are committed to race-conscious diversity initiatives; these employers will make sure that their programs are in compliance with the law. It is estimated that 80% of employers in the U.S. have some kind of DEI in place. According to USA Today, white men still represent 7 in 10 executives at the very top of the nation’s 100 largest publicly traded companies.
However, some employers may simply give up on race-conscious diversity initiatives, such as, DEI. They may incorrectly assume that race-conscious affirmative action programs are illegal. Currently, DEI efforts are in decline after peaking in 2020 in the aftermath of protests in response to the murder of George Floyd.
The conservative groups, including America First Legal, which backed the Students for Fair Admissions’ lawsuit are now focusing on race-conscious employment affirmative action programs, such as, DEI. America First Legal, a nonprofit run by former Donald Trump adviser Stephen Miller is focused on doing away with race-focused policies. Stephen Miller wrote, “This ruling means we can strike hard legally in our courts now and win major victories. Now is the time to wage lawfare against the DEI colossus”. America First Legal has already filed complaints with the Equal Employment Opportunity Commission asking for investigations into the hiring and employment practices at companies including Starbucks, McDonald’s and Morgan Stanley.
These conservative groups are also focusing their attention on public sector affirmative action, such as, federal, state, and local government hiring and contracting practices. These conservative groups seek to end set-aside programs and racial equity programs.
Bryan A. Chapman, Esquire
[email protected]
Employment discrimination lawyer who counsels employees about EEOC complaints by telephone.
