June 29, 2023

What Impact Will SCOTUS’ Affirmative Action Decision in Academic Programs Have on Employers?

Today, the U.S. Supreme Court ruled on the question of “whether the admissions systems used by Harvard College and UNC are lawful under the Equal Protection Clause of the Fourteenth Amendment.” The Court ruled that they were not. “Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.”

This was not an employment law issue or case. This case involved Title VI of the Civil Rights Act of 1964, which provides, “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The Court explained, “discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.”

This case does, however, lead some employers to ask what implications the decision may have for those that are required to maintain written affirmative action plans because they do business with the federal government.

It has also led other employers to ask what impact the decision may have on their ability to continue to administer policies and programs related to diversity, equity, inclusion, belonging, and accessibility (DEIBA).

The Court’s 237-page decision does not answer those questions. But the U.S. EEOC did publish a related statement today, writing that the 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.”

While courts are not obligated to follow the EEOC’s guidance, they do tend to give federal agencies deference over the laws they are authorized to enforce. Notice the Court’s reference to the EEOC in today’s decision on religious accommodation.

If you are an academic institution receiving federal funds, take heed. Review and modify your admissions procedures, if needed, in accordance with today’s decision and under the direction of your legal counsel. Other employers may want to seek comparable advice on any of their related programs that are or may be perceived to be affirmative action programs.