What Does Affirmative Action's Death Knell Mean For Employers?

• Published date: 14 July 2023
• Subject Matter: Corporate/Commercial Law, Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations, Diversity, Equity & Inclusion
• Law Firm: Sheppard Mullin Richter & Hampton
• Author: Mr Kevin Cloutier, David Poell and Hope Harriman

At the end of June, the U.S. Supreme Court's decision in Students for Fair Admissions, Inc. v. President & Fellows Of Harvard College, Nos. 20-1199 & 21-707, 2023 WL 4239254 (U.S. June 29, 2023), outlawed race-based affirmative action in higher education. Splitting along ideological lines, the Court's conservative supermajority ruled, 6-3, the college admissions programs of Harvard and the University of North Carolina violated the Equal Protection Clause of the Fourteenth Amendment. The monumental decision, which dispensed with 45 years of precedent allowing race-conscious admission policies to achieve a diverse student body, has upended the world of higher education.

But colleges and universities will likely not be the only entities impacted by Students for Fair Admissions. The ruling also raises difficult questions for private employers. While it did not address employers or employment statutes such as Title VII of the 1964 Civil Rights Act, its logic and rationale should put employers on notice that diversity programs in the workplace may no longer be on sure constitutional footing. Chief Justice Roberts wrote in the majority opinion that "[e]liminating racial discrimination means eliminating all of it." SFFA, 2023 WL 4239254 at *12. That categorical statement leaves little wriggle room for racially conscious initiatives in other contexts.

A Cultural Shift

The Court's decision in Students for Fair Admissions will affect students today and employees tomorrow. The decision will likely lead to an increased wave of Title VII "reverse discrimination" litigation, opening the door for lower courts-and perhaps eventually the Supreme Court-to reaffirm Title VII's requirement that race not be considered in employee hiring (and firing).[1] Beyond this, the effects of Students for Fair Admissions will reverberate in the workplace in other ways. The decision is almost certain to spur a cultural shift in employee hiring, the initial wave of which may already be felt.

Chief Justice Roberts' opinion relied heavily on Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003). Grutter held that the Equal Protection Clause did not prohibit the University of Michigan Law School's narrowly tailored use of race in its admissions process to achieve the compelling interest of the educational benefits resulting from a diverse student body. Grutter also reaffirmed Justice Powell's opinion announcing the judgment of a splintered Court in Regents of Univ. of...