The US Supreme Court in June voted to end affirmative action in college admissions, ending four decades of court-approved efforts to diversify student bodies by considering their race, gender, ethnicity, and other characteristics.  Will employers follow their lead and cease employee diversity efforts?  Yes, because most of them will think, rightly so, that affirmative action in the employment setting is almost certainly the next domino to fall.

By a six (6) to three (3) margin, the Justices ruled in Students for Fair Admissions v. Harvard that no matter how well-intentioned the goals, race was not a permissible factor when a college decides which students should or shouldn’t be admitted.

 Does the Decision End Employers’ Plans to Create a More Inclusive Workforce?

Employers’ diversity, equity and inclusion (DEI) programs often include outreach efforts to attract more minority job candidates and racial equity audits to promote equal opportunity for employees and applicants, according to the Society for Human Resources Management (SHRM). Employers may also state their goals are to create a more diverse (perhaps less White and male) workforce and management team.

Indirectly, the new decision may result in fewer minorities attending college.  Presuming their college attendance declines, minority hires may be ineligible for jobs requiring a college degree. Although the decision doesn’t address hiring, it opens the door to potential legal challenges to DEI programs, especially if race is the reason for an individual not to be hired or promoted, or if the employer sets explicit quotas for hiring or promotions.

DEI has become a political “hot potato” among conservative groups, because it’s seen as putting White applicants and employees at an unfair disadvantage. Under a recently passed Florida law, state colleges and universities cannot fund DEI programs.

 May Employers Select Favorites?

Race and other discrimination are already illegal under state and federal anti-discrimination employment laws. Generally, employers can’t legally/explicitly consider race when making decisions around recruiting, hiring, promotion, or termination. DEI programs need to be narrowly tailored, fair, and equitable to comply with existing laws.

The Supreme Court ruled in United Steelworkers v. Weber that private sector affirmative action plans are legal if they address a “manifest imbalance” in a “traditionally segregated workforce.” Most courts have interpreted that as requiring the plan to be supported by direct or statistical evidence of discrimination against the group benefiting from the plan.  It is unclear whether this doctrine will survive the current Supreme Court majority’s sweeping changes.

 When Good Intentions Result in Bad Decisions

A 2003 decision by the US Court of Appeals for the Fifth Circuit shows where private affirmative action plans (and potentially, DEI efforts) can run afoul of the law. A group of Black Xerox employees claimed they were denied job opportunities because of their race. The company used a plan to diversify its Houston office as a reason for its actions. The plaintiffs successfully argued Xerox discriminated against them, and the trial court’s decision to dismiss their claims was overturned.

To succeed, a plaintiff in a discrimination case must establish:

• They are a member of a protected class (due to their race, sex, disability, gender, sexual orientation, etc.);
• They are qualified for the position;
• They suffered a negative employment action (weren’t hired, for example); and
• Afterwards, someone who was not a member of the protected class got more favorable treatment (they were hired or promoted), even though the negatively affected candidate/employee was better qualified for the position.

If the plaintiff establishes this “prima facie” case, the burden shifts to the employer to provide a legitimate, non-discriminatory reason for its actions. In this case, Xerox cited its affirmative action plan.

Xerox’s plan was designed to ensure that the racial and gender makeup of Xerox employees in its Houston office were in reasonable proportion to the local workforce, according to the National Review. The company created ethnic and racial “goals” for each job and grade. Management members were evaluated on their success in meeting these goals. The plan wasn’t designed to address past discrimination or a traditional workforce imbalance.

The appeals court found the affirmative action plan was direct evidence of discrimination, not a legitimate, nondiscriminatory reason for its actions:

Xerox candidly identified explicit racial goals for each job and grade level. The reports also stated that blacks were over-represented and whites were under-represented in almost every job and grade level at the Houston office. Senior staff notes and evaluations also indicate that managers were evaluated on how well they complied with the (plan) objectives. A [rational] jury looking at these facts could find that Xerox considered race in fashioning its employment policies and that because Plaintiffs were Black, their employment opportunities had been limited.

The federal appellate court returned the case to the trial court to allow it to consider the impact of the affirmative action plan.

 If You Don’t Defend Your Legal Rights, You Will Lose Them

The direction of the U.S. Supreme Court appears to be this: whether your employer has a DEI or affirmative action plan or not, you shouldn’t be denied employment opportunities no matter what protected basis you belong to, or don’t belong to.

Kingston Law Group’s central New Jersey employment discrimination attorneys protect the rights of employees and help them hold employers accountable for discriminatory behavior and policies of any type or stripe. Send us an email or call us at 609-683-7400 to arrange a consultation at our Mercer County law office. You will be glad you did.