As a legal matter, the Supreme Court’s rejection of differential admissions in higher education does not in itself prevent employers from pursuing diversity in the workplace.
That, at least, is the conclusion of lawyers, diversity experts and political activists across the spectrum — from conservatives who say strong affirmative action programs are already illegal to those liberals argue that they are on firm legal ground.
But many experts argue that as a practical matter, the decision will discourage corporations from enacting ambitious diversity policies in hiring and promotion — or prompt them to hold back on existing policies. – by encouraging cases under existing legal precedent.
In the wake of Thursday’s decision affecting college admissions, law firms are encouraging companies to review their diversity policies.
“I worry about corporate counsel who see their primary job as preventing organizations from being sued — I worry about excessive compliance,” said Alvin B. Tillery Jr., director of the Center for the Study of Diversity and Democracy at Northwestern University, which advises employers on diversity policies.
Programs to improve the hiring and promotion of African Americans and other minority workers have gained prominence in corporate America in recent years, especially in the wake of the 2020 assassination of George W. Floyd by a police officer in Minneapolis.
Even before the ruling in the college cases, corporations felt legal pressure on their diversity efforts. Over the past two years, a lawyer representing a free-market group has sent letters to American Airlines, McDonald’s and other corporations demanding that they remove hiring policies the group says which is illegal.
The free-market group, the National Center for Public Policy Research, acknowledged that Thursday’s result did not directly bear on its fight against affirmative-action in corporate America. “Today’s decision is irrelevant; it speaks of a special carving for education,” said Scott Shepard, a partner at the center.
Mr. Shepard claimed victory nonetheless, arguing that the decision would help deter employers who might be tempted to break the law. “It couldn’t be more clear after the decision that fudging these contents” is not allowed, he said.
(American Airlines and McDonald’s did not respond to requests for comment about their hiring and promotion policies.)
Charlotte A. Burrows, who was appointed chairman of the Equal Employment Opportunity Commission by President Biden, was also quick to declare that there would be no change. He said the decision “does not address the employer’s efforts to develop a diverse and inclusive workforce or to engage the talents of all qualified workers, regardless of their background. “
Some companies in the cross hairs of conservative groups emphasize the point. “Novartis’ DEI programs are strictly tailored, fair, equitable and comply with current law,” the drugmaker said in a statement, referring to diversity, equity and inclusion. Novartis, too, received a letter from a lawyer representing Mr. Shepard, which is asking to change its policy on hiring law firms.
With the exception of government contractors, affirmative action policies in the private sector are generally voluntary and governed by state and federal rights laws. These laws prohibit employers from basing hiring or promotion decisions on a characteristic such as race or gender, whether in favor of a candidate or against.
The exception, said Jason Schwartz, a partner at the law firm Gibson Dunn, is that companies may consider race if members of a racial minority have previously been excluded from a job category — say, an investment bank that recruited Black bankers after excluding Black people from those jobs for decades. In some cases, employers may also consider the historical exclusion of a minority group from an industry – such as Black and Latino people in the software industry.
In principle, the logic of the Supreme Court’s decision on college admissions may threaten some of these programs, such as those intended to address industry-wide discrimination. But even here, the legal case could be a long one because the way employers typically make decisions about hiring and promotion is different from the way college decisions are made.
“What seems to bother the court is that the admissions programs at issue treat race as a plus without regard for the individual student,” Pauline Kim, a professor at Washington University in St. Louis who specializes in employment law, said in an email. But “employment decisions are more often individual decisions,” focusing on the fit of a candidate and a job, he said.
The more significant impact of the court’s decision is likely to be greater pressure on policies that are already on questionable legal grounds. That might include leadership acceleration programs or internship programs open only to members of underrepresented minority groups.
Many companies may also find themselves vulnerable to policies that follow civil rights law on paper but violate it in practice, said Mike Delikat, an Orrick partner who specializes in employment law. . For example, a company’s policy may encourage recruiters to seek a more diverse pool of candidates, where hiring decisions are made without regard to race. But if the recruiters implement the policy in a way that effectively creates a racial quota, he said, that is illegal.
“The devil is in the details,” said Mr. Delicate. “Do they interpret that to mean, ‘Come back with 25 percent of the internship class that has to come from an underrepresented group, and if you don’t you’re going to be called a bad recruiter’?”
College admissions cases before the Supreme Court are silent on most of these employment-related questions. However, Mr. Delikat said, his company has been advising clients since the court agreed to hear the cases that they should make sure their policies are air-tight because the rise in litigation is likely.
That’s partly because of a growing attack from the political right on corporate policies aimed at diversity in hiring and other social and environmental goals.
Florida Governor Ron DeSantis, who is seeking the 2024 Republican presidential nomination, blamed the “wake mind virus” and proclaimed Florida “the state where wakefulness dies.” The state has implemented legislation to limit diversity training in the workplace and prevents state pension funds from basing investments on “environmental, social and corporate” considerations.
Conservative legal groups are also active on this front. A group led by Stephen Miller, a White House adviser to the Trump administration, has argued in letters to the Equal Employment Opportunity Commission that the diversity and inclusion policies of many large companies are illegal and is asking the commission to investigate. . (Mr. Miller’s group did not respond to a request for comment about the lawsuits.)
The National Center for Public Policy Research, which challenges corporate diversity policies, sued Starbucks directors and officers after they refused to reverse the company’s diversity and inclusion policies in response to a letter requesting that they will do it. A Starbucks spokesperson said in an email Friday, “Through our commitments to inclusion and diversity, we continue to strive to make Starbucks a welcoming place for our associates (employees).”
Mr. Shepard, the center’s partner, said more lawsuits are “reasonably likely” if other companies don’t comply with demands to tighten their diversity and inclusion policies.
One modest way to do so, says David Lopez, a former general counsel for the Equal Employment Opportunity Commission, is to design policies that are race-neutral but nonetheless likely to promote diversity — such as to emphasize whether a candidate has overcome significant obstacles.
Mr. Lopez noted that, in the Supreme Court majority opinion, Chief Justice John G. Roberts Jr. argued that a university may consider a candidate’s impact on overcoming racial discrimination, as long as the school does not consider the candidate’s race per se.
But Dr. Northwestern’s Tillery said making such changes to business diversity programs would be an overreaction to the decision. While the federal Civil Rights Act of 1964 generally prevents basing individual hiring and promotion decisions clearly on race, it allows employers to remove barriers that prevent companies from having more diversity. -other workers. Examples include training managers and recruiters to ensure that they do not knowingly discriminate against racial minorities, or advertising jobs on certain campuses to increase the universe of potential applicant.
Finally, companies appear to face a greater threat of discrimination litigation against members of minority groups than of discrimination litigation against whites. According to the Equal Employment Opportunity Commission, there were about 2,350 cases of the latter form of employment discrimination in 2021, among about 21,000 race-based charges overall.
“There is an inherent interest in choosing your poison,” said Dr. Tillery. “Is this a lawsuit from Stephen Miller’s right-wing group who doesn’t live in the real world? Or is this a lawsuit from someone who says you’re biased in your workforce and might tweet how sexist or racist are you?
He added, “I’ll take Stephen Miller’s poison any day.”
J. Edward Moreno contributed to the report. Susan C. Beachy contributed to the research.
