Future of Affirmative Action in Employment Decisions

Posted in: Employment Law

The U.S. Supreme Court’s recent decision, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023), striking down racial preferences in admission decisions at Harvard and North Carolina universities raises considerable concern over the impact of these rulings on affirmative action not only in college admissions but also in employment decisions.

Which Laws Apply?

A few basic points first. The University of North Carolina case (No. 21-707, June 29, 2023) involved a public institution of higher education and the application of the equal protection clause of the Fourteenth Amendment. The Harvard University case (No. 20-1199, June 29, 2023) involved a private institution and the application of Title VI of the Civil Rights Act of 1964, 42 U.S.C. Section 2000d et seq. For state and local public universities and schools, the UNC case will be directly relevant, as will 42 U.S.C. Section 1983, which provides a cause action for damages caused by a violation of a person’s constitutional (and certain statutory) rights. For federal institutions, the Fifth Amendment contains no equal protection clause, but the Supreme Court has held that “equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.” See Buckley v. Valeo, 421 U.S. 1, 93 (1976).

Title VI, at issue in the Harvard case, has only limited application to employment. See U.S. Dept. of Justice, Civil Rights Div., Title VI Legal Manual (Updated), Section X—Employment Coverage. On the other hand, Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq., is the principal federal antidiscrimination law applicable to both private and government employers having 15 or more employees. As pertaining to race, color, and national origin, if a practice violates equal protection in government offices, it likely also violates Title VII in private and state and local government sectors. The Court held in McDonald v. Santa Fe Trail Transportation, 427 U.S. 273 (1976), that Title VII protects white employees in the same way it protects Black employees subject to racial discrimination. This may not be true of 42 U.S.C. Section 1981, a remedy for racial and certain forms of national origin bias in public and private employment dating back to the Civil Rights Act of 1866, which provides that “all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens (emphasis supplied).”

What Did the Court Hold in the Harvard and UNC Cases?

Chief Justice John Roberts’s opinion for six justices in Harvard and five justices in UNC is not crystal clear, but a holding can be gleaned from the following. The Court faulted the admissions practice of the two universities because they accorded a “preference” for applicants of one race over another. (This was disputed as a matter of fact by the universities, and their position was supported by the lower court findings.) As the Court stated: “We have time and again forcefully rejected the notion that government actors may intentionally allocate preferences to those ‘who may have little in common with one another but the color of their skin.” (quoting Shaw v. Reno, 509 U.S. 630, 647 (1993)). “The entire point of the equal protection clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb or because they play the violin poorly or well.” “Race and ancestry are problematic because they entail the assumption that “(students) of a particular race, because of their race, think alike.” (quoting Miller v. Johnson, 515 U.S. 900, 911-12 (1985)). Moreover, race “may never be used as a ‘negative’ and … may not operate as a stereotype.” The design of the Harvard and UNC programs was unlawful because they used racial and ethnic categories in an incoherent, overinclusive fashion (e.g., treatment of Asian applicants as a single category), demonstrating no “meaningful connection between the means they employ and the goals they pursue,” thus defying any real judicial scrutiny. The Court further cautioned “courts may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review.”

Race-Based Remedial Action

The Court’s stated concern is racial and ethnic preferences, and classification of students on these grounds. There is no evidence from Roberts’s opinion that the Court is seeking to prohibit all consideration of race, ancestry, and like factors by university admissions officers or employers. The Court is against “outright racial balancing,” but, citing Franks v. Bowman Transportation, 424 U.S. 747 (1976), seemingly approves of race-based “make whole” remedies at least for proven intentional discrimination: “When it comes to workplace discrimination, courts can ask whether a race-based benefit makes members of the discriminated class ‘whole for (the) injuries they suffered.’” The use of race here is not open-ended and has a logical stopping point.

One question is how far will the Court accept race-based remediation for discrimination. Title VII prohibits not only intentional discrimination on account of race but also unjustified discrimination adversely affecting racial and ethnic minorities. For example, say an employer uses artificial intelligence (AI) as a selection device for screening job applicants. The employer is not aware the algorithms used by the device have “learned” on data generated by third parties in a biased manner. Traditionally, a class of, say, Black applicants would have been permitted to seek redress from the disproportionate disadvantage they claim the device had on their chances of obtaining employment. If a violation is proved, the applicant class will seek is a race-based remedy for nonintentional discrimination but one affecting the members of the class disproportionately. There would be a logical stopping point and the means would be connected to the violation, and thus measurable by reviewing courts.

Can a race-based remedy be used in the way the Court did, invoking a gender-based affirmative action plan, in Johnson v. Santa Clara Transportation Agency, 480 U.S. 616 (1987), to justify a hiring preference for a female employee for a construction position in an industry which historically employed few women at construction sites? Is gender different from race? Is evidence of a history of “imbalance” or underrepresentation with the employer or industry a sufficient predicate for a race-based remedy?

‘Affirmative Recruiting’

Can an employer recruit individuals from racial or other groups so as to expand the supply of qualified Blacks or Hispanics in the applicant pool? If the employer is not demonstrating an actual hiring preference for those individuals, there should be no violation. But would a disparate-impact challenge be available under Title VII for white applicants who have not received similar affirmative attention? Disparate-impact challenges to racial preferences by white applicants or employees have not been mounted before but the reasoning in McDonald suggests they can be in the right circumstances. Note also that Executive Order 11,246, around since the Johnson administration, requires federal contractors to analyze how they recruit individuals in certain racial and ethnic groups and come up with a plan to do a better job of hiring or promoting qualified workers from these groups. (Many state and local governments have similar programs.) The Office of Federal Contract Compliance Programs (OFCCP), housed in the U.S. Labor Department, requires contractors who have “underutilized” available qualified workers in those groups to develop goals to bring utilization into balance with availability in accord with a promised timetable. Is this approach now legally problematic? Is there a sufficient remedial justification here?

Other arguably race-related issues such as diversity goals in employment, racial data gathering, consideration of racial or ethnic impact of RIFs, and race-based programs like special grants, minority-business preferences and diversity, equity, and inclusion initiatives (DEI), will be covered in a forthcoming article.

Reprinted with permission from the August 16, 2023 issue date of the “New York Law Journal” © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com

Comments are closed.