From a legal perspective, the Supreme Court’s rejection of racially motivated college admissions does not prevent employers from promoting diversity in the workplace.
At least that’s the conclusion of lawyers, diversity experts and political activists from across the spectrum – from conservatives who say robust affirmative-action programs are already illegal to liberals who argue they have solid legal foundations .
However, many experts argue that, for practical reasons, the ruling will discourage companies from adopting ambitious diversity policies in hiring and promotion – or cause them to limit existing policies – by encouraging litigation within existing legal norms.
After Thursday’s decision that affected college admissions, law firms urged companies to review their diversity policies.
“I worry about corporate attorneys who see their primary role as preventing organizations from being sued — I worry about over-compliance,” said Alvin B. Tillery Jr., director of the Center for the Study of Diversity and Democracy from Northwestern University, which advises employers on diversity policies.
Programs to encourage the hiring and promotion of African American and other minority workers have been prominent in America’s businesses in recent years, particularly in the context of racial discrimination following the 2020 killing of George Floyd by a Minneapolis police officer.
Even before the college cases were judged, companies were facing legal pressure because of their diversity efforts. For the past two years, a lawyer representing a free market group has sent letters to American Airlines, McDonald’s and many other companies demanding that they reverse hiring policies that the group believes are illegal.
The free market group, the National Center for Public Policy Research, acknowledged that Thursday’s result had no direct impact on its fight against affirmative action in American business. “Today’s decision is not relevant; it was about a special spin-off for education,” said Scott Shepard, a center staffer.
Mr Shepard nevertheless achieved victory, arguing that the ruling would help deter employers who might be tempted to break the law. “It couldn’t be clearer after the decision that forging around the edges is not allowed,” he said.
(American Airlines and McDonald’s did not respond to requests for comment on their hiring and promotion policies.)
Charlotte A. Burrows, who was appointed by President Biden to chair the Equal Employment Opportunity Commission, was also quick to declare that nothing had changed. She said the decision “does not affect employers’ efforts to promote a diverse and inclusive workforce or to include the talents of all skilled workers regardless of their background.”
Some companies in the crosshairs of conservative groups underlined this point. “Novartis’ DEI programs are tightly tailored, fair and equitable and compliant with applicable laws,” the drugmaker said in a statement, referring to diversity, equity and inclusion. Novartis has also received a letter from a lawyer representing Mr Shepard’s group, demanding that the company change its policy on hiring law firms.
Aside from government contractors, affirmative action in the private sector is largely voluntary and governed by state and federal civil rights statutes. These laws prohibit employers from basing hiring or promotion decisions on characteristics such as race or gender, whether or not they speak for a candidate.
The exception, according to Jason Schwartz, a partner at law firm Gibson Dunn, is so that companies can consider race if ethnic minorities have previously been excluded from a job category — such as an investment bank that recruits black bankers after excluding black people from such professions for decades. In some cases, employers may also consider the historical exclusion of a minority group from an industry – such as Black and Latino in the software industry.
In general, the logic of the Supreme Court’s college admissions ruling could jeopardize some of these programs, such as those designed to tackle industry-wide discrimination. But again, litigation can prove lengthy because the way employers typically decide on hiring and promotions is different from how colleges make admissions decisions.
“What seems to trouble the court is that the admissions programs in question treated race as a plus without regard to the individual student,” said Pauline Kim, a professor at Washington University in St. Louis who specializes in labor law, in an email. But “hiring decisions are more often individual decisions,” with an emphasis on the fit between a candidate and a job, she said.
The more significant impact of the court decision is likely to be greater pressure on policies that already had questionable legal foundations. This could include leadership acceleration programs or internship programs open only to underrepresented minority groups.
Many companies may also be vulnerable to policies that, while consistent on paper with civil rights laws, violate them in practice, said Mike Delikat, a partner at Orrick, who specializes in labor law. For example, a company’s policies may encourage recruiters to seek a more diverse candidate pool from which to make hiring decisions without regard to race. But if recruiters implement the policy in a way that actually creates a racial quota, it’s illegal, he said.
“The devil is in the details,” said Herr Delikat. “Is that how they interpreted it: ‘Come back with 25 percent of the internship class, which has to be from an underrepresented group, and if not, you’ll be labeled a bad recruiter?'”
High Court admissions cases have been largely silent on these employment-related issues. Still, Mr Delikat said his firm has been advising clients since the court agreed to hearing the cases that they should ensure their policies are sound as litigation is likely to increase.
This is partly due to the increasing attack by the political right on corporate policies that target diversity in hiring and other social and environmental goals.
Florida Gov. Ron DeSantis, who is running for the 2024 Republican presidential nomination, has lamented the “wake mind virus” and declared Florida the “state where the woke dies.” The state has enacted legislation to limit diversity training in the workplace and has prevented state pension funds from basing investments on “environmentally, socially and governance-awakened concerns.”
Conservative right-wing groups have also mobilized on this front. A group led by Stephen Miller, a White House adviser in the Trump administration, has written letters to the Equal Employment Opportunity Commission, claiming that several large companies’ diversity and inclusion policies are illegal and urging the commission to do so investigate. (Mr. Miller’s group did not respond to a request for comment on these cases.)
The National Center for Public Policy Research, which questions companies’ diversity policies, has sued Starbucks directors and officers after they refused to amend the company’s diversity and inclusion policies in response to a letter saying they did asked to undo. A Starbucks spokeswoman said in an email Friday, “Through our commitment to inclusion and diversity, we continue to strive to make Starbucks a welcoming place for our partners (employees).”
Mr Shepard, who works at the centre, said further lawsuits were “quite likely” if other companies failed to comply with calls to curtail their diversity and inclusion policies.
One modest way to do this, according to David Lopez, a former general counsel of the Equal Employment Opportunity Commission, is to develop policies that are racially neutral but are still likely to promote diversity — for example, by placing emphasis on whether a candidate has overcome significant obstacles.
Mr. Lopez noted that Chief Justice John G. Roberts Jr., in the Supreme Court’s majority opinion, argued that a university could consider the impact of overcoming racial discrimination on a candidate so long as the school did not consider the candidate’s race itself.
But dr Northwestern’s Tillery said such changes to business diversity programs could be an overreaction to the ruling. While the federal Civil Rights Act of 1964 generally precludes making individual hiring and promotion decisions explicitly based on race, it allows employers to remove barriers that prevent companies from having a more diverse workforce. Examples include training managers and recruiters to ensure they do not unknowingly discriminate against ethnic minorities, or posting vacancies in specific locations to broaden the pool of potential applicants.
Finally, corporations appear to be more at risk from litigation alleging discrimination against members of minority groups than litigation alleging discrimination against whites. According to the Equal Employment Opportunity Commission, there were about 2,350 charges of this latter form of workplace discrimination in 2021, for a total of about 21,000 racial charges.
“There’s an inherent interest in choosing your venom,” said Dr. Tillery. “Is it a lawsuit from Stephen Miller’s right-wing group that doesn’t live in the real world? Or is it a lawsuit from someone claiming that you discriminate against your workforce and can tweet about how sexist or racist you are?”
He added, “I’ll take the Stephen Miller venom any day.”
J. Edward Moreno contributed reporting. Susan C. Beachy contributed to the research.