It’s no secret that just in time for our nation’s birthday, the United States Supreme Court eliminated affirmative action in the college admission process. Specifically, the Court held that the 14th Amendment means what it says – namely that Americans are not to be treated differently because of race. Put simply, the nation’s highest court has made clear that whether preferential treatment is well-intentioned or not, it’s still discrimination. Of course, this is nothing new for employers. Title VII of the Civil Rights Act has demanded this outcome in the workplace for over 50 years.
In Students for Fair Admissions, Inc. v. Harvard College and University of North Carolina, et al., the defendant universities asserted it was acceptable to discriminate in favor of accepting minority applicants because in so doing the universities were serving the best interests of society. The universities reasoned that by utilizing race as a factor, and admitting pre-set percentages of varying races, they could right the wrongs of historical educational inequalities. The affirmative action programs looked at applicants’ races, determined a preferred racial “mix,” and in doing so promoted the ability of students to acquire knowledge based on “diverse outlooks,” created a “robust marketplace of ideas,” and prepared students to become engaged and productive citizens. While these are certainly laudable goals, the means to get there chosen by colleges across the United States were deemed by the Supreme Court to be inconsistent with our nation’s rule of law, because these programs let some people decide what is right and wrong for others based solely on race.
To understand the Supreme Court’s pathway to this ruling, compare the affirmative action concept to the clear wording of Title VII:
It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race . . .; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race . . .,
The courts have held that only under the most exigent of circumstances can racially motivated decisions be made. “In the context of racial violence in a prison, for example, courts can ask whether temporary racial segregation of inmates will prevent harm to those in the prison.” However, that same kind of safety-sensitivity and temporary nature does not apply to the college admission process.
Further, the Court pointed out that the promise of the Equal Protection Clause is that race may never be used as a “negative” and that it must not be allowed to operate as the basis for destructive stereotyping. Applying this principle to affirmative action, applicants who are not in the “targeted” race to be benefitted, will instead be negatively affected by their race. So, while undisputedly trying to right a wrong, the Court found affirmative action to still be a vehicle for engaging in the same offensive and demeaning stereotyping that is, “contrary to the ‘core purpose’ of the Equal Protection Clause.” This is because “[O]utright racial balancing” is “patently unconstitutional,” and is an anathema to the Constitution’s promise that everyone is to be treated as individuals and not just members of a particular race.
So, what lessons should an employer take away from this case? The Equal Employment Opportunity Commission (EEOC) has a suggestion. The chair of the EEOC, Charlotte Burrows, while fearful of the negative impact the decision will have on the ability of minorities to participate in higher education, pointed out that the Court does not prohibit employers from implementing “diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”
Chairperson Burrows’ statement is consistent with the Supreme Court’s suggestion that universities should use different methods to improve the balance of students in their classes by looking to socioeconomic quantifiers, access to education, and the overcoming of obstacles. In fact, the Court pointed out that:
nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.. . . A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.
In this same spirit, employers should take from this opinion the notion that they may recruit from the most diverse sources to ensure a workforce that reflects the population at large and evaluate applicants on more than just grades received in school that appear on resumes submitted by applicants.
At the end of the day, making employment decisions in the workplace based in any manner on the basis of race is patently illegal. That much has not changed. Nonetheless, employers may still take the spirit of the Harvard decision as a call to re-tool recruiting efforts to make diversity of upbringing and socioeconomic background, as well as individual accomplishments by applicants with their upbringing giving context to those accomplishments, the focus of these recruiting efforts.
If you have any questions about how this Supreme Court decision impacts your policies or any other employment related issues please feel free to contact Madalene Witterholt or any of the other members of the Firm’s Labor & Employment Practice Group.