On June 29, 2023, the United States Supreme Court issued a decision, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, striking down decades of precedent that had previously permitted affirmative action programs in connection with admission practices at colleges and universities. While the Harvard decision does not directly impact employers, the rationale supporting it has the potential to impact employment practices moving forward, as discussed below.
What the Supreme Court Ruling Addressed
To understand the impact of the recent decision on employers and businesses, it is important to understand what the ruling addressed. The Supreme Court's ruling directly confronted the constitutionality of using race in the admissions process at two of the oldest and most selective institutions of higher learning in the United States: Harvard College and the University of North Carolina. For decades, the Supreme Court had approved of race-conscious admissions practices that used race as a factor in a holistic review of an applicant toward creating educational diversity on campuses—practices that both Harvard and UNC admitted to using in the current case. However, the current Supreme Court found that any use of race in admissions decisions—aside from a small carve out for considering an applicant's discussion of how race affected his or her life—violates the equal protection clause of the United States Constitution, and is therefore illegal.
Of note, the Harvard decision states that:
- Harvard and UNC failed to operate their race-based admissions programs in a manner sufficiently measurable to permit judicial review.
- Training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens were not adequately defined compelling interests.
- A benefit provided to some applicants, but not to others, necessarily advantages the former group at the expense of the latter.
Forecasting the Impact of the Harvard Decision on Employers
In the wake of the Harvard decision, certain practices of employers may be subject to additional challenges from prospective plaintiffs. While the decision is not controlling as to private employers in the hiring context—in large part, employers have long been prohibited from using race as a factor in hiring decisions—the rationale set forth in the decision may be used to challenge certain employment practices through different legal avenues.
For example, diversity, equity, and inclusion (DEI) initiatives may be exposed to additional attack through "reverse discrimination" claims under laws like Title VII of the Civil Rights Act of 1964 or state non-discrimination laws. The Harvard decision explains that initiatives designed to increase inclusion of, "opaque racial categories undermines, instead of promotes," goals of diversity and inclusion. The particular interest of the Court pointing out the difficulty in defining racial categories suggests that because racial categories are inherently ambiguous, fostering support for discrete minority groups can only be achieved at the expense of non-minorities—which, according to the Court, is discriminatory. While none of these arguments are novel or new, the Harvard decision now grants them a weight that they did not enjoy previously. In fact, Senator Tom Cotton of Arkansas recently sent a letter to 51 major law firms throughout the United Sates, warning that diversity programs pose legal and practical risks for companies based on the recent Harvard decision. Similarly, 13 state Attorney General's issued a letter to Fortune 100 companies, warning that discrimination under the label of DEI or otherwise is illegal and that companies that engage in such discrimination may face serious legal consequences. Such recent actions show a clear willingness of lawmakers and government attorneys to challenge DEI practices throughout the country.
Importantly, the Harvard decision may also be used to challenge existing policies that are race neutral, but favor one race in practice. In the education context, this would include challenges to admission practices that give a preference to legacy students or to substantial donors, as they tend to favor non-minority students and applicants. In fact, Harvard is again embroiled in litigation and government oversight concerning this very issue. The argument in such cases would parallel the Harvard decision, as "what cannot be done directly cannot be done indirectly." As such, similar recruiting and hiring efforts by employers could come under fire as well.
Practical Guidance for Employers
Care should be taken in reviewing policies, procedures, and initiatives concerning employers' DEI efforts moving forward. Employers interested in continuing such efforts would be well-served by ensuring that they understand the evolving legal landscape. General or broad DEI mission statements, such as those used by Harvard and UNC to justify their admissions policies, may need to be reworked to identify specific goals and outcomes. Those goals and outcomes must align with legitimate business reasons and be narrowly tailored to limit any perceived or real negative impact to other groups of individuals. Employers may also wish to consider the exclusivity of certain employee groups to ensure equal access to potential benefits by all employees. Further, employers should reinforce through training and policies that all employment decisions must be based on legitimate business related criteria and not based on protected categories, such as race, color, religion, national origin, or sex.
While it remains to be seen how race-neutral policies of private employers may be challenged, employers may see an increase in complaints from both minority and non-minority employees, as described above. As such, employers should consider reflecting on not only their intentional initiatives and actions, but also the end result of their normal employment activities. If hiring or advancement rates among minorities are lagging behind their non-minority contemporaries, it may be prudent to evaluate whether systemic barriers exist, which incidentally favor non-minority employees.
With that said, the Harvard decision does not mean that employers must abandon their current DEI initiatives or practices. It also does not upend current laws that encourage or require certain conduct relative to diversity and inclusion efforts, such as applicable CROWN acts. What the Harvard decision does mean is that employers should be mindful of their employment practices, the reason behind those practices, and the impact those practices have on the minority and non-minority populations serviced and employed by them.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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