Practical Takeaways For Employers From The Supreme Court Affirmative Action Decision

• Published date: 06 July 2023
• Subject Matter: Corporate/Commercial Law, Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations, Diversity, Equity & Inclusion
• Law Firm: K&L Gates
• Author: Mr Craig E. Leen, Leann M. Walsh, Kathleen D. Parker, Petal Munroe Reddick, Taylor Arluck and Mallory M. Cooney

On 29 June 2023, the US Supreme Court issued its decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College,¹ and reversed the longstanding rule that race can be considered as a plus factor among many factors when making higher education admissions decisions. Through this ruling, the court effectively ended affirmative action in college and university admissions.

The decision does not directly address affirmative action in employment, which already prohibits the use of plus factors. Thus, the immediate impact on employers will likely be limited. Nevertheless, the ripple effects of the court's decision may create added risks for employers and ultimately impact affirmative action and diversity initiatives in the long run.

THE DECISION

The 6-3 majority opinion in Students for Fair Admissions addressed affirmative action in admissions at Harvard and the University of North Carolina, and determined that their use of race as a plus factor in admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment. In the higher education context, "affirmative action" generally means considering a student's race as one factor within a holistic review of the student's application. The majority determined that while promoting pluralism, diversity, and other values in education are commendable goals, they were not "sufficiently coherent" to survive strict scrutiny in the context of providing racial preferences in admissions for an indefinite period of time. While race, in and of itself, can no longer be an admissions factor, the ruling acknowledges that colleges and universities can still consider an applicant's explanation of how race influenced the student in relation to the individual student's leadership and character advocacy as it relates to specific admissions-related criteria. There were six total opinions from the Justices (majority, three concurring, and two dissents), with the dissents strongly criticizing the majority and advancing the argument that the Fourteenth Amendment allows for race conscious decisions to address historic discrimination and promote diversity.

MANDATORY AND VOLUNTARY AFFIRMATIVE ACTION IN EMPLOYMENT SHOULD NOT BE IMPACTED...FOR NOW

In the employment arena, there are two forms of affirmative action'mandatory and voluntary. Put simply, mandatory affirmative action is required by applicable law, while voluntary affirmative action is not. As described in more detail below, mandatory affirmative action includes legal mandates applicable to covered federal contractors and subcontractors (covered contractors); voluntary affirmative action includes diversity-focused initiatives by companies that are not covered contractors. In addition, affirmative action in the employment context may target other underrepresented protected classes in addition to race.

Mandatory affirmative action based on race and gender applies to covered contractors under Executive Order 11246 and Office of Federal Contract Compliance Program (OFCCP) regulations.² These regulations require contractors to assess underrepresentation in their workforce and remedy through good faith efforts such as outreach, recruitment, and training. These regulations also require covered contractors to proactively assess compensation...