Articles

An Early Report on How The Supreme Court’s Affirmative Action Admissions Policies Decision Is Impacting The Private Sector

Introduction
In Students for Fair Admissions v. Harvard, 600 U.S. ___ (June 29, 2023) (SFFA), the United States Supreme Court struck down the legality of affirmative action programs within the university setting, holding that universities may not use race by itself as a “plus factor” in college admissions decisions.  Without delving too deeply into the legal nuances of the 237-page decision, the Court’s majority opinion noted the following important points: (1) because of the “zero sum” nature of university admissions, it is not possible for race to be a “plus factor” for some applicants without functioning as a detriment for others; and (2) using race as a plus factor inevitably invokes impermissible race stereotyping.[1]  It took only moments before the ripples of this decision were felt across both the public and private sector.

Following the ruling, legal experts predicted years of litigation and discourse regarding affirmative action in workplace hiring across a wide range of industries and business sectors.

One organization, America First Legal (founded by Trump former advisor Stephen Miller) declared to “Woke Corporations, Law Firms and Hospitals” that it deemed “all DEI programs and workplace balancing based on race, national origin, and sex violate the law.”  Its website contains a robust list of Press Releases touting its efforts in this regard including sending a cease and desist warning letter to Price Waterhouse Coopers demanding they stop using racial preferences in hiring and internship programs, with similar letters to a plethora of medical and law schools.

Shortly after the SFFA decision, the State Attorney Generals in thirteen (13) states[2] sent a letter to Fortune 100 companies setting out their interpretation of the decision and its application to private employers.  Although this AG Letter does not have the force of law, it provides telling perspective for companies that engage “in a laundry list of activities that these Attorneys General have deemed violative of the constitutional framework set forth in SFFA.”[3]  

Ironically, perhaps, Law Firm diversity efforts are at the forefront of the attacks being levied by elected officials and advocacy groups.  Senator Tom Cotton of Arkansas sent a letter to 51 law firms about what he considered the likely unlawfulness of their DEI programs and went so far to instruct the law firms of their “duty to fully inform clients of the risks associated with making employment decisions based on race.”  Id. 

From there, it did not take long for numerous law firms to be called out regarding DEI initiatives and programs.  The American Alliance for Equal Rights ("AAER") sued Perkins Coie LLP and Morrison Foerster LLP separately in federal courts (Dallas and Miami respectively) claiming their fellowship programs dedicated to minorities were unlawfully discriminatory against white applicants.  In response to the litigation, Morrison Foerster removed language from its fellowship program specifying that is only open to Black, Hispanic, Native American or LGBTQ applicants.[4]  AAER’s head, Edward Blum, maintains that “[l]awyers should know that the law does not permit racial discrimination in order to achieve proportional racial outcomes in any profession.”[5] 

The American Bar Association ("ABA") has condemned these attacks, reminding that the legal profession has a long way to go as far as having a diverse workforce.  ABA President Mary Smith noted that just 6% of lawyers are Hispanic (despite making up 19% of the U.S. population) and only 5% of lawyers are Black, while they make up 15% of the population.[6] 

What’s Next For Workplace Diversity Efforts?

The SFFA decision may (and already has) emboldened individuals and interest groups representing the majority to believe there is now a better chance of “reverse discrimination” claims being successful, or audits being conducted which may reveal discriminatory layers within DEI-labelled initiatives.  That should provide ample incentive for businesses to prepare.  That said, the actions that many are lamenting are “discriminatory” are typically not present in most employer DEI programs.

Racial quotas and preferences in hiring, recruiting, retention, promotion, and advancement are almost never components of such programs, which instead focus on increasing overall cohesion, sensitivity, belonging, inclusion, and equity in the workplace.[7] 

Moreover, on the same day of the SFFA decision, the Equal Employment Opportunity Commission ("EEOC") issued a press release declaring that the SFFA 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 the SFFA decision will certainly influence on some level how private employers structure/restructure their DEI programs, policies and practices, employers must remember that the Supreme Court decision focused on factors unique to the university admissions process, particularly the “zero-sum” nature of the college admissions process.  Further, employers that are federal contractors may have obligations under the Office of Federal Contract Compliance Programs ("OFCCP") to maintain affirmative action programs for women, minorities, individuals with disabilities, and veterans. See Executive Order 11426.

Final Thoughts

The following recommendations will help employers remain compliant with anti-discrimination workplace requirements and mitigate being targeted because of DEI processes:
 

• Define diversity in a very broad manner.  Diversity is much more than just race or gender (or other protected characteristics).  Diversity may include familial status, education level, languages spoken, volunteer experiences, work experience, and so on.  Diversity is much more than what is written in a statute.
   
• Ensure your hiring process is accessible.  Expand your geographic reach, utilize different sources for referrals, and ensure job descriptions are crafted with accessibility in mind.
   
• Engage your employees.  Evaluate and implement programs that are open to all employees and encourage mentorship, sponsorship, training, and advancement.  Employee Resource Groups or Affinity Groups ("ERG") remain appropriate.  While the focus of such groups may be on certain categories of employees (working parents, LBGTQ+, and the like), membership should be open and encouraged for all who are interested, regardless of their personal match to the title or mission of the group.
   
• Prioritize workplace training.  Regular and timely training on discrimination, harassment and retaliation remains important.  Other trainings on diversity, equity, inclusion, cultural competency, and unconscious bias will benefit the culture and environment in a way that is very relatable and less “legal”.
   
• Communicate consciously on DEI.  Review communications to ensure they are consistent with the messages intended and do not unintentionally deliver and exclusionary or limiting message or focus.