As a legal matter, the Supreme Court’s denial of racially conscious enrollment in higher education does not in itself prevent employers from pursuing diversity in the workplace.
At least, that’s the conclusion of lawyers, diversity experts and political activists around the world – from conservatives who argue that strong affirmative action programs are already illegal. to libertarians who claim they have a solid legal basis.
But many experts argue that in practice, the ruling will discourage corporations from introducing ambitious diversity policies in hiring and promotion — or cause them to rein in existing policies — by encouraging lawsuits according to applicable legal standards.
Following Thursday’s decision affecting college admissions, law firms encourage companies to review their diversity policies.
“I’m really worried about corporate advisors, who see their primary job as keeping things safe,” said Alvin B. Tillery Jr., director of the Center for Diversity and Democracy Studies at Northwestern University. organizations don’t get sued – I’m really worried about over-compliance.” , who advises employers on diversity policies.
Programs to promote hiring and promotion for African-Americans and other minority workers have been prominent in corporate America in recent years, especially in the race of reckoning after the murder of George Floyd in 2020 by a Minneapolis police officer.
Even before the ruling in the university cases, corporations felt legal pressure on their diversification efforts. In the past two years, a lawyer representing a free market group sent a letter to American Airlines, McDonald’s and many other corporations require them to rescind employment policies that the corporation deems illegal.
The free-market group, the National Center for Public Policy Research, acknowledged that Thursday’s results do not directly affect the fight against affirmative action in US companies. “Today’s decision is irrelevant; Scott Shepard, a member at the center said.
However, Mr Shepard still claimed victory, arguing that the ruling would help prevent owners who might be tempted to bypass the law. “It couldn’t be clearer after the decision that faking it at the edges” was not allowed, he said.
(American Airlines and McDonald’s did not respond to requests for comment on their recruitment and promotion policies.)
Charlotte A. Burrows, who was appointed by President Biden to chair the Equal Employment Opportunity Commission, was also quick to state that nothing had changed. The decision “does not address employer efforts to promote a diverse and inclusive workforce or to attract the talent of all qualified workers, regardless of background,” she said. their foundation.”
Several companies targeted by conservative groups have emphasized this point. “Novartis DEI plans are narrowly regulated, fair, equitable, and compliant with applicable law,” the drugmaker said in a statement, referring to diversity, equality and inclusion. import. Novartis also received letter from attorney representing Mr. Shepard .’s groupasked it to change its policy on hiring law firms.
In addition to government contractors, affirmative action policies in the private sector are largely voluntary and governed by state and federal civil rights laws. These laws prohibit employers from making hiring or promotion decisions based on a trait such as race or gender, whether in favor or against the candidate.
Jason Schwartz, a partner at the law firm Gibson Dunn, says the exception is that firms can take race into account if members of a racial minority have previously been excluded from the job category – for example. For example, an investment bank recruited Black bankers after excluding Blacks. people from such jobs for decades. In some cases, employers may also consider excluding a historical minority in the industry – like Blacks and Latinos in the software industry.
In principle, the logic of the Supreme Court’s ruling on college admissions could threaten some of these programs, like those aimed at addressing industry-wide discrimination. But even here, the legal case can drag on because the way employers typically make hiring and promotion decisions is different from how universities make admissions decisions.
Pauline Kim, professor at Washington University in St. Louis, who specializes in employment law, said: “What seems to bother the court is that the problematic admissions programs see race as a plus without regard to individual students. But “hiring decisions are often more personal decisions,” focusing on the match between the candidate and the job, she said.
The more meaningful impact of the court’s decision could be greater pressure on policies that already have a dubious legal basis. These may include leadership accelerator programs or internship programs only available to members of underrepresented minority groups.
Mike Delikat, a partner at Orrick who specializes in employment law, says many companies can also find themselves vulnerable to policies that comply with civil rights law on paper but violate it in practice. economic. For example, a company’s policy might encourage employers to seek out a more diverse pool of candidates, from which hiring decisions are made regardless of race. But if employers implement policy in a way that effectively creates racial quotas, he said, it’s illegal.
“The devil is in the details,” Mr. Delikat said. “Did they interpret it to mean, ‘Let’s go back to that 25 percent of interns have to come from an underrepresented group, and you’ll be seen as a bad employer’?”
College admissions cases before the Supreme Court have been largely silent on these employment-related questions. However, Mr. Delikat said his firm has been advising clients since the courts agreed to hear cases that it should ensure that its policies are transparent because of the potential for this to happen. litigation increased.
That’s partly due to the growing attack from the political right on company policies aimed at diversity in hiring and other social and environmental goals.
Governor Ron DeSantis of Florida, who is seeking the 2024 Republican presidential nomination, has disappointed “the mind virus wakes up” and declares Florida “the state where the person who wakes up dies.” The state has enacted laws to Limited variety training at work and have limit state pension funds from investments based on “environmental, social and corporate governance awakening” considerations.
Conservative legal groups have also mobilized on this front. A group led by Stephen Miller, a White House adviser in the Trump administration, argued in letters to the Equal Employment Opportunity Commission that the diversity and inclusion policies of some big companies is illegal and requires an investigation by the commission. (Mr. Miller’s team did not respond to a request for comment on those cases.)
The National Center for Public Policy Research, which is challenging corporate diversity policies, has sue Starbucks directors and employees after they refused to undo the company’s diversity and inclusion policies in response letter ask them to do so. A Starbucks spokesperson said in an email on Friday, “Through our commitment to inclusion and diversity, we continue to strive to make Starbucks a welcoming place for our partners (employees). I.”
Mr Shepard, a member at the center, said more lawsuits were “very likely” if other companies did not accept requests to rein in their diversity and inclusion policies.
David Lopez, former general counsel of the Equal Employment Opportunity Commission, says a modest way to do so is to design policies that are race-neutral yet capable of promoting diversity – for example. For example, assessing whether the candidate has overcome significant obstacles.
Mr. Lopez noted that, in the Supreme Court’s majority opinion, Chief Justice John G. Roberts Jr. argued that a university could account for the effect on a candidate over racial segregation, as long as it did not consider each candidate’s race.
But Northwestern’s Dr Tillery said making such changes to corporate diversification programs could be an overreaction to the ruling. Although the federal Civil Rights Act of 1964 often prevents explicitly making hiring and personal promotion decisions based on race, it allows employers to remove these obstacles. prevent companies from having a more diverse workforce. Examples include training managers and recruiters to ensure that they do not inadvertently discriminate against racial minorities or advertising jobs at certain schools to increase the number of applicants. potential members.
Finally, companies seem to face a greater threat of litigation against members of minorities than litigation about discrimination against whites. According to the Equal Employment Opportunity Commission, there will be approximately 2,350 allegations of later form of employment discrimination in 2021, out of approximately 21,000 won general race-based fees.
“There is an inherent preference in choosing your poison,” says 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 who says you’re discriminating against your workforce and can tweet about how sexist or racist you are?”
He added, “I would take Stephen Miller poison any day.”
J. Edward Moreno contribution report. Susan C. Beach Contributing research.
