EEOC Chairwoman Charlotte A. Burrows shared an atypically short statement yesterday, essentially asserting that there should be no change at this time for employers in regard to their diversity, equity and inclusion (“DEI”) initiatives as a result of the Supreme Court’s decision with regard to considering race as a factor in admissions decisions. Although Chairwoman Burrows is technically correct that the Court’s decision did not address employers’ DEI initiatives, certain pronouncements and key portions of the Court’s rationale in the university cases suggest future obstacles for employers that continue to forge ahead with a panoply of DEI programs.

The Supreme Court Opinion

The Supreme Court was considering a pair of decisions, one involving the admissions process at Harvard University, and the other involving the University of North Carolina. At both institutions, the lower courts had found that the universities directly considered race as a factor in their admissions decisions. Falling within specific race categories would qualify as an advantage in the consideration of an applicant, a “thumb on the scale” in the deliberation process comparable to being the child of a prominent alumnus or a recruited athlete.  The difference, though, between race as a consideration and factors like legacy or athlete status, is that only race is considered a legally protected class and the 14th Amendment and Title VI of the Civil Rights Act of 1964 (applicable to educational institutions) provide that laws must treat people equally.

Interpretation of Prior Decisions

The Supreme Court cited cases, going back to Brown v. Board of Education (1955), that have held that state laws cannot favor one race over another, that the equal protection clause requires equality of treatment under the law for everyone “without regard to race or color.” The Court explained that an exception to that principal of equality can only be made when: (1) the racial classification is used to further a compelling government interest, and (2) the government’s use of race is “narrowly tailored“ to achieve that interest. The Court reasoned that standard has been met only when the government is remediating specific, identified instances of past discrimination that were unlawful, or when necessary to avoid imminent and serious risk to human safety in prisons.

The Court cited decisions subsequent to Brown, in which it has recognized a compelling state interest in obtaining the educational benefits that flow from a racially diverse student body. However, the Court cited limits on how that interest can be achieved.  Quotas or setting aside a prescribed number of seats for each identifiable category of applicants are impermissible, and individuals cannot be rejected based simply on their race. Rather, the Court said race could operate only as a “plus factor” in a particular applicant’s file and be considered as one of multiple elements of diversity and individual qualifications.  In addition, race could not be used in a manner that unduly harmed non-minority applicants, and race-based admissions programs had to have some end point.

The Supreme Court last addressed these issues in a 2003 opinion, which expressed an expectation that, in 25 years, racial preferences would no longer be necessary to achieve educational diversity. The Court observed in its current opinion that, “[t]wenty years later, no end is in sight.” The court held that the Harvard and UNC admissions programs failed to comply with the narrow exception to the mandates of equal protection, because they use race as a stereotype or negative factor, and because they have no endpoint.

Rationale for Invalidating the Current University Approach

The Court observed that the objectives espoused by the universities in support of their programs, such as training future leaders and broadening understanding and promoting the robust exchange of ideas and perspectives, were too lofty and amorphous for courts to measure or evaluate. The Court further held that the racial categories used by the universities (which align with those recognized by the Equal Employment Opportunity Commission (EEOC) in its collection of diversity data) were overbroad (in classifying all Asians together) arbitrary, otherwise undefined (such as classifying who is “Hispanic”), or under-inclusive (in not clearly incorporating individuals from Middle Eastern countries). The Court declared that the universities “may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review.”

Citing evidence in the record that Harvard’s consideration of race had led to a more than 11% decrease in the number of Asian Americans admitted and had similarly resulted in fewer white students being admitted, the Court concluded that race was being impermissibly used as a negative factor for certain groups. The Court stated, “a benefit provided to some applicants, but not to others, necessarily advantages the former group at the expense of the latter.“ The Court further held that preferences based on race alone amount to impermissible stereotyping because they presume differences in perspective based solely on race.

Finally, the Court held there was no logical endpoint to the universities’ racial preferences.  The Court cited diversity data in the record, which reflected fairly consistent percentages of representation year-on-year among Black, Hispanic and Asian students at Harvard, and concluded that the university’s objective of “meaningful representation and meaningful diversity” was imprecise when it was being measured against the demographics of admitted student data from prior years. The Court similarly faulted UNC’s metric of comparing the diversity of its admissions relative to the percentage of each racial group within the general population of North Carolina as being unconstitutional racial balancing.

The Court explained that what would be permissible is for universities to consider an applicant’s discussion of how race affected that individual’s life in any respect. The Court stressed, though, that this did not mean application essays could be used to indirectly effectuate the same race-based preferences that it was holding to be unconstitutional.

Where This Leaves Employers

Key aspects of the Court’s rationale for invalidating the universities’ admissions programs suggest that certain employer-sponsored DEI initiatives also may not ultimately withstand legal scrutiny.  Indeed, EEOC Commissioner Andrea Lucas authored a cautionary article that the Court’s decision heightens the risks already posed by certain corporate diversity programs.  As she explained:

There are distinct but similar statutory sections of the Civil Rights Act — Title VI and Title VII, respectively — that govern the education and employment contexts. Prior to [the Court’s ruling on university admissions], the Court permitted universities to use race as a factor in admissions, based on their interest in promoting “diversity.” Not so in the employment context. The Court never has blessed employers taking race-conscious employment actions based on interests in workforce diversity.

Time and again, I have explained to HR professionals and managers that there is no such thing as “reverse discrimination.”  Considerations of race, in any form, are always legally suspect.  In limited circumstances, courts in the past have upheld employers voluntarily engaging in affirmative actions in their hiring, training and promotion practices (but not through layoffs or terminations) to increase the representation of one or more underrepresented groups.  These programs had to be appropriately targeted to the interests of eliminating workforce imbalances in certain job categories and they could not “unnecessarily trammel” the rights of other employees or create an absolute bar to other employees’ advancement.

Aspects of the Supreme Court’s analysis in the recent university cases, as recounted above, seem to refute some of the rationale that employers have relied on in support of their voluntary affirmative action measures.  For example, some organizations offer programs like internships targeted only for specific racial minorities under the premise that they introduce opportunities to minority candidates.  If a benefit provided to some individuals but not others in the academic admissions context is now viewed as necessarily advantaging “the former group at the expense of the latter,” there is reason to question whether the targeted internship programs will survive legal review.

Also, prior court decisions, albeit not at the level of the U.S. Supreme Court, have held that in the employment context, an employer’s voluntary affirmative action measures could be premised on an analysis that the proportion of minimally qualified minority applicants in the resident population was substantially higher than the proportion of minority employees in the job category at that organization.  It was not necessary for the employer to respond to any demonstrable evidence that the employer’s own prior discriminatory practices had created that imbalance.  Employers’ comparison to the resident population does not seem vastly different from UNC’s metric of comparing the diversity of its admissions relative to the percentage of each racial group within the general population of North Carolina.  The Supreme Court held UNC’s approach was impermissible racial balancing.

Even the categorization of individuals into the six select groups used by the EEOC for EEO-1 reporting purposes, which is commonly used as a shorthand metric for employers in their own diversity initiatives, seems to have come under fire in the Supreme Court’s decision.  While not recognized in the Supreme Court’s majority opinion, the EEOC and various court decisions have provided parameters around who is considered “Hispanic” and in which category to include individuals from the Middle East.  Employers rely on that guidance, and most often on individuals’ own self-identification, to classify employees and job applicants among the various racial categories.  What is not clear from the Supreme Court’s opinion is whether those categories are now considered too overbroad, arbitrary and otherwise meaningless to form a basis for framing DEI initiatives.

Some DEI Measures Should Still Survive

The Supreme Court’s decision should not be read as foreclosing all DEI initiatives.  Initiatives to:

• broaden the pool of applicants beyond liaising with the traditional recruiting contacts;
• reconsider the necessity of certain job qualifications that may unduly filter out more diverse candidates;
• assess whether the phrasing of job descriptions may disincentivize certain categories of potentially qualified individuals from applying; and
• standardize interview questions and put measures in place to reduce biased selections

do not appear to be implicated by the Court’s analysis.  Even initiatives to support underrepresented groups after they are hired, such as through mentoring and employee networks may be permissible, particularly if those initiatives are not solely offered to individuals in select racial categories.

Each of those efforts requires an investment of time and resources.  They do not allow for quick fixes of targeted hiring in the interests of achieving a desired racial distribution among employees.  Commissioner Lucas’s article challenges whether targeted hiring has ever been permissible and makes the point that employers that previously may have misapplied the affirmative action principles of the university admissions cases to the workplace context should take the time now to re-evaluate their DEI programs and initiatives.

By Tracey I. Levy