How the Supreme Court Affirmative Action Decision Affects the Workplace
On July 29, the U.S. Supreme Court (SCOTUS) issued its decision in Students for Fair Admissions, Inc. V. President & Fellows of Harvard College, effectively ending affirmative action considerations in college admissions. The ruling, which was unsurprising given the conservative leanings of the Court, generated responses ranging from acclamation to despair.
Why it matters to employers
The ruling directly affects only higher education, with no impact on affirmative action in employment. But attorney Andrew Turnbull of the employment and labor group at Morrison & Foerster believes that the decision is likely to have a ripple effect that will have an impact on employers in the long run.
“We’re probably going to see increased challenges to workplace DEI (diversity, equality, and inclusion) and affirmative action programs. When people hear that the Supreme Court addressed affirmative action, there will be some who assume that education and employment are identical.”
Attorneys from K&L Gates point to a possible trigger for change to employment affirmative action programs.
“For example, in the Students for Fair Admissions decision, the Supreme Court questioned whether the standard race/ethnicity categories (e.g., White, Black/African American, Hispanic/Latino, Asian, Pacific Islander, Native American), were specific enough to be good measures of underrepresentation in the admissions context, and noted that the current categories are very broad and include many different ethnicities and national origins. This could lead the EEOC and OFCCP to disaggregate these categories into more specific categories, such as East Asian and South Asian as noted by the court, for use in the employment context.”
Fewer categories would mean, in part, that employers would have difficulty recruiting diverse candidates for employment. The SCOTUS ruling also could serve as a “blueprint” for employees to challenge DEI (diversity, equality, inclusion) programs in court—and for lawmakers to increase legislative efforts targeting DEI initiatives.
What employers should do now
Even though the workplace is not immediately affected by the affirmative action ruling, wise employers know that the best time to prepare for the future is now. Start with a close look at your affirmative action program and other diversity-focused initiatives, guided by experienced counsel.
Review existing DEI programs and written materials. Look for vulnerabilities in your current efforts, making sure that programs are based on objective, race-neutral diversity analytics. Work with your attorney to confirm that all written statements or descriptions are clear, up-to-date, and compliant with employment law.
Train managers and company leadership. Education on the benefits and objectives of DEI programs is essential. Explain exactly what affirmative action means; enlist your employment counsel to help. Managers must understand that employment decisions, including hiring and promotion, must be based solely on business-related criteria.
Assess current diversity training. Take a fresh look at your overall approach to teaching employees about diversity and inclusion in light of recent legislation. Consult with counsel to ensure that all DEI training is constructed in a way that is balanced, focused, and lawful.
Keep up with state law. Monitoring state and local regulations of DEI is your employment attorney’s job. Your company must comply with every law, but you do not have to use internal resources to wade through the fine print.
The Supreme Court is out of session until October, but the repercussions of reversing decades of precedent will continue. As you consider next steps for your company, keep in touch with attorneys who specialize in employment law. As always, we are ready to help.