In its decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina[1] issued on June 29, 2023, the Supreme Court held that the undergraduate admissions programs of Harvard College and the University of North Carolina violate the standards of the Equal Protection Clause of the Fourteenth Amendment because they fail to satisfy strict scrutiny, rely on racial stereotyping, and lack a logical endpoint. The decision did not directly implicate Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits discrimination on the basis of race in employment decisions, but employers are interested in the impact the Court’s ruling may have on diversity, equity, and inclusion (“DEI”) efforts in the private employment context. Equal Employment Opportunity Commission[2] (“EEOC” or “Commission”) Chairperson Charlotte Burrows and Commissioner Andrea Lucas each offered initial views immediately after issuance of the decision, which together convey a message to employers concerning their DEI efforts: proceed, but with caution.
A few hours after the Supreme Court’s decision, the EEOC issued a press release with a statement from Chairperson Burrows in response to the decision. Burrows was appointed to the Commission by former President Barack Obama and designated the Chair by President Biden. Chairperson Burrows stated that the Court’s decision “does not address employer efforts to foster diverse and inclusive workforces,” and opined that “[i]t 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.”
Another Commissioner, Andrea Lucas, who was appointed by former President Donald Trump, expressed views on workplace DEI programs in commentary published on June 29 by Reuters and during a subsequent media appearance. Her commentary noted that the Supreme Court’s ruling does not alter current federal employment law, and that Title VII has always prohibited using race as a factor in employment decisions. But Commissioner Lucas also stated that the Supreme Court’s ruling should prompt employers to “take a hard look” at their corporate diversity programs. For example, she opined that “explicitly or implicitly taking race into decision-making for employment decisions” through initiatives, such as “race-restricted internships, race-restricted mentoring, [and] race-focused promotion decisions,” may already be “violating the law.”
Private employers have been permitted to establish voluntary affirmative action programs that involve consideration of race in employment decisions if certain criteria were met pursuant to Supreme Court decisions in United Steelworkers of Am. v. Weber, 443 U.S. 193 (1979) and Johnson v. Transp. Agency, 480 U.S. 616 (1987). Such programs must (i) seek to “eliminate manifest racial imbalances in traditionally segregated job categories”; (ii) be temporary; and (iii) not “unnecessarily trammel the interests of [non-minority] employees.” Johnson, 480 U.S. at 628-30. The same year Weber was decided, the EEOC issued guidelines for implementing a Title VII-compliant voluntary affirmative action program (distinguishable from affirmative action programs required of federal contractors). The guidelines and subsequent EEOC interpretation provided that a voluntary affirmative action program, such as a race-conscious hiring policy or career advancement training program, may be permissible if the employer engages in a self-analysis that identifies policies or practices that have led to racial imbalances in traditionally segregated job categories, and the action taken pursuant to the program is reasonable in relation to the problems identified by the self-analysis.
The EEOC provided additional guidance in 2006 beyond formal affirmative action plans. The EEOC explained that “Title VII permits diversity efforts” and discussed DEI efforts more generally, apart from formal affirmative action plans. It described two examples of diversity efforts intended to open up opportunities: strategies to expand the applicant pool of qualified Black candidates, such as recruiting at schools with high enrollment of Black students, when the number of job applicants was lower than expected based on the demographic makeup of the qualified labor pool; and revising a policy requiring a college degree to allow flexibility for applicants to have a college degree or two years of relevant experience, in order to minimize disparate impact on any racial group. The EEOC also stated that formal affirmative action plans must be implemented in accordance with the Weber-Johnson criteria in order to pass muster under Title VII. With regard to both DEI and affirmative action programs, the EEOC indicated that “very careful implementation…is recommended to avoid the potential for running afoul of the law.”
In recent years, employers have implemented a broad range of initiatives to support DEI in the workplace. Such efforts are distinguishable from voluntary affirmative action programs in various ways, including because affirmative action programs typically involve tangible employment actions intended to remedy the effects of past discrimination, whereas DEI efforts tend to be forward-thinking and crafted in order to create an inclusive workplace where employees of all backgrounds can thrive. Whether an employer’s actions constitute a voluntary affirmative action plan or diversity efforts is not always clear, but the distinction is significant.
Litigation has been brought in the past arguing that some employer initiatives should be subject to greater scrutiny—such as intern programs that consider only applicants of a specific race or leadership development programs offered only to employees of a specific race. These initiatives are distinct in meaningful ways from many more general efforts that seek to improve inclusivity, create equal opportunity, and mitigate bias in the workplace—such as the establishment of affinity groups, adoption of structured interview processes to ensure more equitable evaluation of candidates for roles, or efforts to ensure a more diverse pool of candidates for employment. In considering what initiatives could be targeted for litigation, employers should give thought to the extent to which their DEI efforts and initiatives implicate tangible employment actions or, instead, promote a more equitable and inclusive work experience.
If you have any questions concerning the material discussed in this client alert, please contact the members of our Employment and Appellate & Supreme Court Litigation practices.
[1] 600 U. S. ____ (2023).
[2] The EEOC is a bipartisan Commission comprised of five presidentially-appointed members, including a Chair, a Vice Chair, and three other Commissioners. (Currently, the EEOC has a vacancy, with only four members.)