The U.S. Supreme Court rewrote the rules for university admissions. So, what are the implications for DEI&B and affirmative action in the workplace?
To find out, we turned to the regulatory experts at UKG to answer your most pressing questions about DEI&B and affirmative action in the workplace.
Let’s start with the basics. What was the U.S. Supreme Court’s ruling on affirmative action programs?
On June 29, 2023, the U.S. Supreme Court struck down the affirmative action programs for admissions at Harvard and the University of North Carolina (UNC). In the Students for Fair Admissions (SFFA) case, the Court examined whether Harvard and UNC’s affirmative action programs violated the equal protection clause in the 14th Amendment, which prohibits governments from denying “to any person within its jurisdiction the equal protection of the laws.”
Could you explain the Court’s reasoning?
According to long-standing theory, a government classification according to race must pass “strict scrutiny,” which means that the classification must be necessary to achieve a “compelling government interest.” In this case, the Court referenced prior precedent from its affirmative action decisions in Regents of Univ. of California v. Bakke and Grutter v. Bollinger and decided that remedying past societal discrimination was not a compelling interest, but was rather, “discrimination for its own sake.” Following the decision in Bakke, the Court implied that the only possible “compelling interest” for Harvard and UNC to consider race would be “the educational benefits that flow from a racially diverse student body.”
But educational benefits do flow from a racially diverse student body.
Yes, however, the Court ultimately found that the universities’ admissions programs were illegal on a number of grounds, including:
- The justifications were immeasurable;
- There was no meaningful connection between the universities’ means and goals;
- They inherently used race as a “negative” factor for some applicants since admissions is a zero-sum process;
- They perpetuated racial stereotypes;
- The programs lacked a logical endpoint and were not limited in time.
There is a significant distinction between “affirmative action” programs at universities and those in employment.
Are race-related considerations ever allowed in university admissions?
Yes, they are allowed under certain circumstances. The ruling says, “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” So universities could, for example, consider the benefits to a student who overcomes racial discrimination, but that consideration must be tied to things such as that particular student’s courage and determination. “The student must be treated based on his or her experiences as an individual—not on the basis of race,” according to the ruling.
We’re talking about university admissions. So, how does the Supreme Court ruling affect affirmative action in the workplace?
Currently, the Harvard and UNC rulings do not have a direct legal effect on affirmative action in the workplace and DEI&B in private employment. Importantly, the majority opinion focused on the 14th Amendment, which does not apply to private employment.
There is a significant distinction between “affirmative action” programs at universities and those in employment. In the Harvard and UNC cases, race was used as a “plus” factor in considering individual applicants. In the majority of employers’ programs, this is not the case. Rather, the programs are aimed at extending outreach programs, increasing the pipeline of applicants, and fostering inclusion within the workplace.
Most employer affirmative action programs are aimed at extending outreach, increasing the pipeline of applicants, and fostering inclusion within the workplace.
What about Equal Employment Opportunity (EEO) policies?
These typically prohibit the explicit consideration of race, gender, etc. as a factor when making hiring and promotion decisions. Generally, consideration of race in decision-making is prohibited by antidiscrimination laws, such as Title VII, in the employment context.
Has the Court found any affirmative action programs legal for private employers in the past?
Yes, there are some limited exceptions to this. Some voluntary race- and gender-based affirmative action programs have been found legal for private employers. For example, in Steelworkers v. Weber, the Supreme Court upheld a defendant employer’s program to reserve half of the openings in its training program for African American employees until the percentage of African American workers mirrored the percentage of African American people in the local labor force. In doing so, the Court found that voluntary, race-conscious affirmative action programs are legal if:
- The preferences are intended to “eliminate conspicuous racial imbalances in traditionally segregated job categories;”
- The rights of non-minority employees are “not unnecessarily trammeled,” (i.e., there were no terminations or absolute bars to advancement);
- The preferences are temporary in their duration.
Likewise, in Johnson v. Transportation Agency, the Court later upheld the use of gender as a plus factor within a traditionally male-dominated job classification where the program met all of the above requirements.
Do EEO policies affect contractors?
Yes, Executive Order 11246 and the Office of Federal Contractor Compliance Programs regulations also require covered contractors and subcontractors to take affirmative action to ensure applicants and employees are treated without regard to race, color, religion, sex, and national origin. Contractors must have a written affirmative action program with:
- An analysis identifying underutilization of qualified minorities and women;
- Placement goals;
- Timetables;
- An outline of programs to achieve goals and timetables.
Certain actions are barred, such as quotas, set asides, and preferential treatment.
When it comes to affirmative action in the workplace, what’s the main takeaway for employers?
Although there is no immediate legal effect, the recent Supreme Court decision in SFFA may heighten future public and legal scrutiny on employers’ voluntary DEI&B programs, as well as on required and voluntary affirmative action policies. Some legal advocacy groups have questioned whether Title VI and Title VII make allowances for racial considerations for “compelling interests” or diversity.
The Weber and Johnson cases may be decided differently today given the current Supreme Court’s emphasis that remedying historic discrimination is not a “compelling interest.” Affirmative action programs under Executive Order 11246, as well as voluntary DEI&B that focus on increasing applicants from racial minorities, may also face legal challenges under similar theories and under federal and state antidiscrimination laws.
What can employers do today to protect and continue to prioritize their DEI&B strategies?
Employers do not need to stop their current DEI&B programs but should stay aware of the changing legal landscape. Employers may want to review their current DEI&B programs with legal counsel to determine if any area of their program may be susceptible to legal challenge.
Keep in mind: Research proves that businesses that invest in DEI&B strategies consistently outperform those that don’t. Highly inclusive organizations are more likely to hit their financial target goals by up to 120%. To learn why building a DEI&B-based culture results in a positive impact on your people and business and how to develop a strategy, check out The UKG DEI&B Playbook.
