Employment Law Implications of SCOTUS Affirmative Action Decision

September 20, 2023

By: Colin A. Walker

As discussed in a previous blog post, in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the U.S. Supreme Court held that admissions programs at Harvard and the University of North Carolina were unlawful because they considered race in making admissions decisions. While this case applied to college admissions, it did not take long for the impact to be felt in the realm of employment law. 

On the same day that the decision was announced, the Chair of the EEOC, Charlotte A. Burrows, was quoted in an EEOC press release. Pointing out that the decision applied only to college admissions, not employment, Ms. Burrows stated, “it remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”

However, on July 13, 2023, thirteen state attorneys general sent a letter to fortune 100 companies, cautioning them about racial preferences in hiring and contracting. Quoting heavily from Students for Fair Admissions, the letter admonished the companies that racial discrimination is illegal under federal and state law, explaining “when an employer makes employment or contracting decisions ‘on the basis of race, it engages in the offensive and demeaning assumption that [applicants] of a particular race, because of their race, think alike.’” The letter concluded ominously, “We urge you to immediately cease any unlawful race-based quotas or preferences your company has adopted for its employment and contracting practices. If you choose not to do so, know that you will be held accountable—sooner rather than later—for your decision to continue treating people differently because of the color of their skin.” 

This was followed quickly by a rebuttal letter from attorneys general of 20 other states and the District of Columbia supporting taking diversity into consideration in recruiting. The letter states, “We write to reassure you that corporate efforts to recruit diverse workforces and create inclusive work environments are legal and reduce corporate risk for claims of discrimination.” 

On August 22, 2023, the American Alliance for Equal Rights, the conservative group that spearheaded the Students for Fair Admissions case, sued two of the largest law firms in the country, Perkins Coie and Morrison Foster, arguing that their recruiting programs violate federal anti-discrimination laws. The complaints allege that the firms’ summer associate fellowship programs are illegal because the criteria for admission to the programs include “membership in a group historically underrepresented in the legal profession, including students of color, students who identify as LGBTQ+, and students with disabilities.” 

Employers, lawyers and courts are going to have to grapple with these issues in federal courts and, probably, state courts. And, the law on affirmative action in recruiting and contracting is not likely to be clear until the U.S. Supreme Court rules on these issues. Such an opinion is almost certainly years away. Until then, employers with DEI programs which consider race and similar characteristics in recruiting decisions will be in a confusing and uncomfortable position. 

Employers wishing to support DEI programs could consider, as an alternative to preferences based on race and similar characteristics, encouraging applicants of all races and classes to apply, but taking into account personal experiences, such as overcoming discrimination, poverty, and lack of educational opportunities. Consideration of such factors was specifically approved by the Supreme Court in Students for Fair Admissions for college admissions and there is no reason to believe it would be different for employment. While this practice might not improve employment opportunities of applicants from historically underrepresented groups as directly as some would like, it could provide significant support for DEI efforts without risking litigation such as the lawsuits faced by Perkins Coie and Morrison Foster, and as threatened by thirteen state attorneys general.