Affirmative Action Judgments Can Also Overturn the Diversity Hiring Policy

As a matter of law, the Supreme Court's rejection of race-conscious admissions in higher education does not in itself deter employers from pursuing diversity in the workplace.

That, at least, is the conclusion of lawyers, diversity experts, and political activists across the spectrum — from conservatives who say strong affirmative action programs are already illegal to liberals who argue they have a sound legal basis.

But many experts argue that as a practical matter, the decision will prevent companies from implementing ambitious diversity policies in recruiting and promotion — or encourage them to control existing policies — by encouraging lawsuits below existing legal standards.

After Thursday's decision affecting college admissions, the law firm pushing the company to review their diversity policy.

“I worry about corporate advisers who see their main job as keeping organizations from being sued — I worry about over-compliance,” says Alvin B. Tillery Jr., director of the Center for the Study of Diversity and Democracy at Northwestern University, who advises employers about diversity policies.

Programs to encourage the hiring and promotion of African Americans and other minority workers have featured prominently in corporate America in recent years, especially in racial reckoning following the 2020 killing of George Floyd by a Minneapolis police officer.

Even before the verdict in the college case, companies felt legal pressure over their diversity efforts. Over the past two years, an attorney representing a free market group has sent a letter to American flights, McDonald's and many other companies are demanding that they drop their hiring policies that the group says are illegal.

Free market group, the National Center for Public Policy Research, conceded that Thursday's results did not directly affect its fight against affirmative action in corporate America. “Today's decision is irrelevant; it deals with engraving specifically for education,” said Scott Shepard, a fellow at the center.

Mr Shepard nevertheless claimed victory, arguing that the ruling would help deter employers who might be tempted to break the law. “It couldn't be clearer after the ruling that faking it over the edge” was not allowed, he said.

(American Airlines and McDonald's did not respond to requests for comment about their hiring and promotions policies.)

Charlotte A. Burrows, appointed chair of the Equal Employment Opportunity Commission by President Biden, was also quick to point out that nothing had changed. He said the decision “does not address employers' efforts to promote a diverse and inclusive workforce or to engage the qualified talent of all workers, regardless of their background.”

Several companies that oppose conservative groups underline this point. “The Novartis DEI program is narrowly tailored, fair, equitable and compliant with existing legislation,” the drugmaker said in a statement, referring to diversity, equity and inclusion. Novartis has also accepted a letter from a lawyer representing Mr. Sheparddemanded a change in its policy on hiring law firms.

Outside of government contractors, affirmative action policies in the private sector are largely voluntary and governed by state and federal civil rights laws. These laws prohibit employers from basing hiring or promotion decisions on characteristics such as race or gender, whether for or against the candidate.

The exception, says Jason Schwartz, a partner at the law firm Gibson Dunn, is that companies may consider race if members of racial minorities were previously excluded from the job category — for example, an investment bank that recruits black bankers after excluding blacks. people of the job for decades. In some cases, employers may also consider the historical exclusion of minority groups from an industry — such as black and Latino people in the software industry.

In principle, the logic of the Supreme Court ruling on college admissions could threaten some of these programs, as well as those meant to tackle industry-wide discrimination. But even here, legal cases can be difficult because the way employers typically make hiring and promotion decisions is different from the way colleges make admissions decisions.

“What the court seems to be bothering is that the admissions program in question treats race as a plus without regard for the individual student,” said Pauline Kim, a professor at the University of Washington in St. Louis. Louis specializing in employment law, via email. But “job decisions are more often individual decisions,” with a focus on the fit between the candidate and the job, he said.

A more significant effect of court decisions is likely to be greater pressure on policies that already have a questionable legal basis. That could include accelerated leadership programs or apprenticeship programs that are open only to members of underrepresented minority groups.

Many companies also find themselves vulnerable to policies that comply with civil rights laws on paper but violate them in practice, said Mike Delikat, a partner at Orrick who specializes in employment law. For example, company policy may encourage recruiters to seek a more diverse pool of candidates, from which hiring decisions are made regardless of race. But if recruiters were implementing policies in a way that effectively created racial quotas, he said, that would be illegal.

“The devil is in the details,” said Mr. Delikat. “Do they interpret that as, ‘Come back with 25 percent of the class of interns who have to be from underrepresented groups, and if you don't, you will be considered a bad recruiter'?”

The college admissions case before the Supreme Court was largely silent on this job-related question. Nonetheless, Mr Delikat said, his firm has been advising clients since the court agreed to hear the case that they should ensure their policies are airtight due to the possibility of increased litigation.

That's partly due to increasing attacks from the political right on company policies aimed at diversity in hiring and other social and environmental goals.

Governor Ron DeSantis of Florida, who is seeking the 2024 Republican presidential nomination, has done just that regret “the virus of the awakened mind” and proclaimed Florida “the state where the awakened die.” The state has enacted laws to limit training diversity at work and have limited state pension fund from basing investments on “built environment, social and corporate governance” considerations.

Conservative legal groups are also mobilizing on this front. A group run by Stephen Miller, a White House adviser in the Trump administration, argued in a letter to the Equal Employment Opportunity Commission that diversity and inclusion policies several big companies illegal and asked the commission to investigate. (Mr. Miller's group did not respond to requests for comment about the case.)

The National Center for Public Policy Research, which opposes corporate diversity policies, has done so sued Starbucks directors and officers after they refused to drop the company's diversity and inclusion policies in response a letter demand that they do it. A Starbucks spokesperson said in an email on Friday, “Through our commitment to inclusion and diversity, we continually strive to make Starbucks a welcoming place for our partners (employees).”

Mr Shepard, a fellow at the center, said more lawsuits “likely make sense” if other companies don't agree to demands to control their diversity and inclusion policies.

One simple way to do this, says David Lopez, former general counsel for the Equal Employment Opportunity Commission, is to design policies that are race-neutral but still tend to promote diversity — such as placing weight on whether a candidate has overcome significant barriers.

Mr. Lopez noted that, in the Supreme Court's majority opinion, Chief Justice John G. Roberts Jr. argues that a university may consider the effect on a candidate who has overcome racial discrimination, so long as the school does not consider the candidate's own race.

But Dr. Northwestern's Tillery said making such changes to the business's diversity program could be an overreaction to the decision. While the federal Civil Rights Act of 1964 generally prohibited basing individual hiring and promotion decisions explicitly on race, it allows employers to remove barriers that prevent companies from having a more diverse workforce. Examples include training managers and recruiters to ensure that they do not unknowingly discriminate against racial minorities, or advertising for jobs on certain campuses to increase the world of potential applicants.

Ultimately, the company appears to face a greater threat of litigation for discrimination against members of minority groups than it does for discrimination against white people. According to the Equal Employment Opportunity Commission, there were approximately 2,350 charges of the last form of discrimination in employment in 2021, among 21,000 race-based fees overall.

“There's an inherent interest in picking your poison,” says Dr. Tillery. “Is it a lawsuit from a Stephen Miller far-right group that doesn't live in the real world? Or is it a lawsuit from someone who says you discriminate against your workforce and can tweet about how sexist or racist you are?

He added, “I would drink Stephen Miller poison any day.”

J. Edward Moreno reporting contribution. Susan C. Beachy research contributions.