What Message Does Affirmative Action Ruling Send to Employers?

On June 29 the U.S. Supreme Court eliminated affirmative action in the college admissions process. Specifically, the Court held that the 14th Amendment means what it says – namely that Americans may not be treated differently because of their race. Put simply, the nation’s highest court has made clear that whether minority racial 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 mandated this behavior in the workplace for over 50 years.

In Students for Fair Admissions, Inc. v. Harvard College and the University of North Carolina, et al., the defendant universities asserted it was acceptable for them to discriminate in favor of accepting certain minority applicants to best serve positive societal interests. The universities reasoned that by utilizing race as a factor and developing their models of appropriate racial mixes, they could right the wrongs of historical inequalities. The universities argued that in doing so they improved the ability of all 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 noble ideals the court deemed that the means to these ends were inconsistent with our nation’s rule of law – deciding who gets what opportunities based on a person’s race is not allowed.

To understand how the Supreme Court came to this conclusion, compare this decision to the mandate of Title VII. “It shall be an unlawful employment practice for an employer to hire, fire, or classify any employee or applicant because of their race.” It’s not much of a stretch to argue that this Supreme Court decision would likewise invalidate a workplace as a violation of the plain language of Title VII.

The Supreme Court pointed out that the Equal Protection Clause of the Constitution promises that race may never be used as a “negative” and that it must not be allowed to operate as the basis for destructive stereotyping. The unintended consequence is that those applicants who are not in the “targeted” race to be benefited, may instead be negatively affected by their race. So, while trying to right a past wrong, the court found affirmative action can result in the same offensive and demeaning stereotyping that is, “contrary to the ‘core purpose’ of the Equal Protection Clause.”

So, what lessons should an employer take away from this case? The Equal Employment Opportunity Commission quickly reminded employers that the Supreme Court did nothing to 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.”

Employers should therefore consider whether to aim to recruit from the most diverse sources available to ensure a workforce that reflects the population at large, and evaluate applicants on more than just grades. This ruling is an opportunity for employers to enhance recruiting efforts by focusing on diversity of upbringing and socioeconomic background in the applicant selection process.

This article first appeared in The Journal Record on July 22, 2023, and is reproduced with permission from the publisher.


Associated People:

Madalene A.B. Witterholt

Practice Area:

Labor & Employment