As a legal matter, the Supreme Court’s rejection of race-conscious admissions to higher education does not in itself prevent employers from embracing diversity in the workplace.
That, at least, is the conclusion of lawyers, diversity experts, and political activists of all kinds — from conservatives who say strong affirmative action programs are already illegal, to liberals who argue they’re on solid legal ground. .
But many experts argue that as a practical matter, the ruling will discourage corporations from implementing ambitious diversity policies in hiring and promotion – or motivate them to rein in existing policies by encouraging lawsuits under the current legal standard. Will do
College admissions, law firms hit after Thursday’s decision companies encouraged Reviewing their diversity policies.
Director of the Center for the Study of Diversity and Democracy at Northwestern University, Alvin B. Tillery Jr. said, “I worry about corporate advisors who see their main job as protecting organizations from lawsuits – I worry about over-compliance.” , which advises employers on diversity policies.
Programs to boost the hiring and promotion of African Americans and other minority workers have been prominent in corporate America in recent years, particularly in the run-up to the 2020 killing of George Floyd by a Minneapolis police officer.
Even before the decision in College Matters, corporations were feeling legal pressure on their diversity efforts. in the past two years, a lawyer representing a free market group sent letter to American Airlines, McDonald’s And several other corporations are demanding that they undo hiring policies that the groups say are illegal.
The National Center for Public Policy Research, a free-market group, acknowledged Thursday’s results had no direct bearing on its fight against affirmative-action in corporate America. “Today’s judgment is not relevant; It’s related to a specific plan for education,” said Scott Sheppard, a fellow at the center.
Nevertheless Mr Sheppard claimed victory and argued the decision would help deter employers who might be tempted to flout the law. “It was not clear after the decision that rigging is not allowed on the sides,” he said.
(American Airlines and McDonald’s did not respond to requests for comment about their hiring and promotion policies.)
Charlotte A. Burroughs, who was named chair of the Equal Employment Opportunity Commission by President Biden, also quickly announced that nothing had changed. They said the decision “does not address employer efforts to promote diverse and inclusive workforces or include the talents of all qualified workers, regardless of their background.”
Some companies from conservative groups underlined this. “Novartis’s DEI programs are narrowly crafted, fair, equitable and comply with existing law,” the drugmaker said in a statement, referring to diversity, equality and inclusion. Novartis has also received A letter from a lawyer representing Mr Sheppard’s groupdemanding that it change its policy on hiring law firms.
Beyond government contractors, affirmative action policies in the private sector are largely voluntary and governed by state and federal civil rights legislation. These laws prohibit employers from making hiring or promotion decisions based on characteristics such as race or gender, whether in favor of or against a candidate.
The exception, said Jason Schwartz, partner at the law firm Gibson Dunn, is that if members of a racial minority were previously excluded from a job category, companies may take race into account — say, an investment bank would exclude Blacks. Black is recruiting bankers after. People have been with such jobs for decades. In some cases, employers may also take into account the historical exclusion of minority groups from an industry – such as black and Latino people in the software industry.
In theory, the logic of the Supreme Court’s decision on college admissions could jeopardize some of these programs, such as those aimed at addressing industrywide discrimination. But even here, the legal matter can be lengthy because the way employers generally make decisions about hiring and promotion differs from the way colleges make admission decisions.
Pauline Kim, a professor at Washington University in St. Louis who specializes in employment law, said in an email, “What is troubling to the court is that admissions programs list race as a plus regardless of the individual student.” It is believed.” But “employment decisions are often individual decisions,” focusing on the fit between a candidate and the job, he said.
The more meaningful impact of the court’s decision is likely to put more pressure on policies that were already on questionable legal grounds. They may include leadership acceleration programs or internship programs that are only open to members of underrepresented minority groups.
Mike Delicat, partner at Auric, who specializes in employment law, said many companies may find themselves vulnerable to policies that comply with civil rights law on paper but violate it in practice. For example, a company’s policy may encourage recruiters to seek a more diverse pool of candidates from which to make hiring decisions without regard to race. But if recruiters implement the policy in a way that effectively creates a racial quota, he said, it’s illegal.
“The devil is in the details,” said Mr. Delicate. “Were they taking this to mean, ‘come back with 25 percent of the internship class that must be from an underrepresented group, and if not you’ll get a bad reputation as a bad recruiter’?”
The college admissions cases before the Supreme Court were largely silent on these employment-related questions. Nonetheless, Mr. Delicat said, since the court agreed to hear the cases, his company has been advising clients that they should ensure their policies are airtight because litigation is likely to increase.
This is partly due to the growing attack of the political right on corporate policies aimed at diversity in recruitment and other social and environmental goals.
Florida Governor Ron DeSantis, who is seeking the 2024 Republican presidential nomination Condemned it “the virus of the waking mind” and Florida was declared “the state where the waking mind goes to die.” the state has made laws for Limit Variation Training more in the workplace forbidden Basing the State Pension Fund’s investments on “conscious environmental, social and corporate governance” considerations.
Conservative legal groups have also mobilized on this front. A group run by Stephen Miller, a White House adviser in the Trump administration, argued in letters to the Equal Employment Opportunity Commission that diversity and inclusion policies many large companies were illegal and asked the commission to investigate. (Mr. Miller’s group did not respond to a request for comment about those matters.)
National Center for Public Policy Research, which is challenging corporate diversity policies sued the directors and officers of Starbucks in response to which he refused to undo the company’s diversity and inclusion policies a letter They are being demanded to do so. (Starbucks did not respond to a request for comment for this article, but its directors told the group that “it was not in Starbucks’ best interests to accede to the demand and roll back the policies.”)
Mr Sheppard, a fellow at the centre, said more lawsuits are a “reasonable possibility” if other companies do not accede to demands to rein in their diversity and inclusion policies.
One modest way to do this, said David Lopez, former general counsel for the Equal Employment Opportunity Commission, is to design policies that are race-neutral but still likely to promote diversity — such as giving weight to whether a candidate has crossed important hurdles.
Mr. Lopez said that, in the Supreme Court’s majority opinion, Chief Justice John G. Roberts Jr. argued that a university can take into account the effect on a candidate of overcoming racial discrimination, as long as the school does not consider it. The race of the candidate himself.
But Northwestern’s Dr. Tillery said making such changes to business diversity programs may be an overreaction to the decision. While the federal Civil Rights Act of 1964 generally prohibits individual hiring and promotion decisions from being explicitly based 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 they are not inadvertently discriminating against racial minorities, or advertising jobs on certain campuses to increase the number of potential applicants.
Finally, companies face a greater risk of litigation against members of minority groups than lawsuits over discrimination against white people. According to the Equal Employment Opportunity Commission, there were approximately 2,350 allegations of the latter form of discrimination in employment in 2021, of which approximately 21,000 Overall caste-based fee.
“You have an inherent interest in picking your poison,” Dr. Tillery said. “Is this a lawsuit from a right-wing group of Stephen Miller who doesn’t live in the real world? Or is it a lawsuit from someone who says you are discriminating against your workforce and tweets how sexist or racist you are?
He added, “I’ll take Stephen Miller’s poison any day.”
J. Edward Moreno Contributed reporting. Susan C. Beachy Contributed to research.