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The future of affirmative action in the workplace

The Supreme Court’s decision to end affirmative action in college admissions could embolden actors to challenge the diversity, equity, and inclusion efforts of employers.

People pay respects as Justice Ruth Bader Ginsburg lies in repose under the Portico at the top of the front steps of the US Supreme Court building, in Washington, DC, on September 23, 2020.  Aurora Samperio/NurPhoto via Getty Images
Fabiola Cineas covers race and policy as a reporter for Vox. Before that, she was an editor and writer at Philadelphia magazine, where she covered business, tech, and the local economy.

Corporations have already scaled back the diversity, equity, and inclusion efforts they launched in 2020 amid an ultimately stunted racial reckoning. Now the question is whether the Supreme Court’s ban on race-conscious admissions will lead them to further rein in these programs to avoid potential legal challenges.

One thing is clear: The laws surrounding affirmative action in employment haven’t changed.

Federal contractors have been required to take affirmative action, steps to ensure applicants are treated fairly, since 1965 when President Lyndon Johnson signed Executive Order 11246. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, and national origin.

Under the Equal Employment Opportunity Commission’s guidelines on voluntary affirmative action, employers are encouraged to take voluntary steps to “correct the effects of past discrimination and to prevent present and future discrimination” such as expanding their applicant pools to ensure a diverse body of applicants for any given position.

As the Equal Employment Opportunity Commission noted in a statement after the decision, the cases do not “address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background,” clarifying that it is still legal for “employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”

Still, legal threats from right-wing organizations that have already spent years trying to get organizations, including Starbucks and McDonald’s, to end their DEI programs could increase.

The Supreme Court’s decision to ban race-conscious measures in college admissions is likely to encourage more lawsuits against race-conscious policies in employment, said Pauline Kim, an employment law expert at the Washington University in St. Louis School of Law.

I talked to Kim about the future of diversity in the workforce and workplace and why affirmative action in college admissions and workplace hiring aren’t completely unrelated. Our conversation has been edited for length and clarity.

Fabiola Cineas

What are the implications of the higher education affirmative action decision on employment?

Pauline Kim

The legal answer is nothing. The Harvard and UNC cases were decided under the equal protection clause of the Constitution, which does not apply to private employers. When it comes to affirmative action or discrimination in the workplace, private employers are covered by Title VII. It’s a different source of law. It’s not just a technical matter of being a different source of law, but there are actually differences in what Title VII holds compared to the equal protection clause precedents of the court. So on the purely legal technical level, there’s no direct implication.

On the other hand, the Court in the higher ed affirmative action cases has expressed hostility to race-conscious efforts to improve racial equity. At that broad level, it may make employers worried about their own DEI programs. And that may encourage people who are ideologically inclined to challenge any kind of race-conscious or race-remedial efforts to try to bring lawsuits to challenge what employers are doing.

There’s also a practical connection for employers, and I think it’s why so many of them weighed in on the university admissions case in favor of affirmative action. They are interested in hiring diverse workforces to meet the demands of their business in a global economy. They are worried about the pipeline of diverse candidates that are going to be available to them for hiring. Since affirmative action in higher ed is something that primarily affects the most elite schools, it could mean that employers may need to move beyond looking at the status of a college or university that somebody attended. They’ll need to look more broadly at students coming from varied educational backgrounds who may have the skills and ability to do the work.

Fabiola Cineas

What’s the history behind Title VII?

Pauline Kim

Title VII is part of the Civil Rights Act of 1964, which was the groundbreaking legislation that Congress passed in the wake of the civil rights protests of the ’50s and early ’60s. Under Title VII, it’s unlawful for an employer to take an adverse action against an employee or an applicant because of their sex, national origin, religion, or color. Title VII was intended to protect Black workers as well as women and other ethnic minorities. Prior to 1964, employers were free to make employment decisions on any of those bases if they wanted to.

After Title VII was passed, in addition to prohibiting intentional discrimination, the Court also made clear that if an employer has a practice that has a disparate impact on disadvantaged groups, then that’s a form of discrimination as well, unless the employer can justify it for business reasons. So a lot of employers realized they had a problem.

Some employers were sued, and they entered into either consent judgments or there were court judgments entered, and then there were permanent affirmative action plans put into place. Other employers realized they needed to voluntarily adopt traditional kinds of affirmative action plans.

Over time, as discrimination became latent, employers moved away from affirmative action plans that involved any kinds of racial quotas. They have really shifted their focus to examining their policies and moving towards what’s now called DEI initiatives.

Fabiola Cineas

Can we take a step back to first even define affirmative action in the workplace context? Does affirmative action in workplace hiring look the same as affirmative action in higher education admissions?

Pauline Kim

Part of the problem is affirmative action, both within the employment space but also more generally, means a lot of different things to a lot of different people. So there’s often confusion about what exactly it entails.

In some of the older cases, affirmative action literally meant that a spot might be reserved, for example, for somebody from a racial minority group. That practice has long since been abandoned by universities and employers. Affirmative action also could refer to a program or policy, where the effort is to diversify either the university class or the workforce, where race or sex is taken into account as a positive.

Sometimes people also use the term affirmative action to mean taking any kind of step that will help to improve racial equity or to improve the diversity of a pool. A lot of firms now refer to that as DEI initiatives rather than affirmative action. So part of the confusion that comes in is that people think that they’re the same thing. There are people on the right who attack DEI programs, equating them with something like a racial quota, when they are completely different. They don’t involve the use of race in individual decisions at all.

Fabiola Cineas

What are some concrete examples of DEI initiatives that you don’t consider to be affirmative action?

Pauline Kim

A really easy example is a law firm that has always been recruiting at the local state flagship university and decides to start recruiting at HBCUs, realizing that by only going to one or two traditional universities to recruit they’re narrowing their pool.

Another example is how some employers in the past wouldn’t formally post jobs. They would rely on word of mouth. That tends to reproduce the existing workforce. If you have a racially homogenous workforce, it’s going to reproduce that. An employer might instead realize that that’s the effect of this practice and choose to formally post their positions and criteria in advance. Instead of just hiring an employee’s cousin, they choose to use rubrics to judge candidates.

Fabiola Cineas

What is legal and what is illegal when it comes to diversity practices or affirmative action in the employment context? Where does the law draw the line on what is allowed in hiring?

Pauline Kim

One of the original Supreme Court cases that dealt with affirmative action in employment was United Steel Workers v. Weber in 1979. That involved a steel plant that had never hired Black workers in the skilled craft positions. They required skilled craft workers to already be trained. Training was done through the unions, and the unions did not admit Black workers at that time. So they recognized after Title VII was passed that they had a problem. They entered into a voluntary agreement with the union that they would create a training program that they would admit trainees on a 50 percent Black to white ratio. In other words, if they had 10 openings, five of them went to Black employees and five went to white employees.

That was a rigid racial quota, but the Supreme Court actually approved that, as it was done in the context of a history of racial segregation where there was a complete absence of Black workers in that job category. And at the same time, the particular program didn’t completely block white workers from moving forward.

The ratio was challenged by a white worker who didn’t get into the program the first year. The Supreme Court upheld it, because it was intended to address this manifest imbalance due to former racial segregation. That kind of a program would be very difficult to justify today, in part because that sort of enforced racial segregation is much harder to prove now. But on the other hand, no employers are doing anything like that today, either.

If an employer had a program that said, “We plan to hire 25 percent workers of color out of all of our hires for the next year,” that’s a racial quota. That’s not something that would be permissible.

If an employer says they value diversity and that they’re going to be looking for diverse candidates and examining their practices to make sure they promote equity and inclusion, and are fair to everybody, that is not a basis for anybody who doesn’t get hired to say, “Oh, I wasn’t hired because of my race.” That’s because there’s no evidence that that individual person was disadvantaged because of their race. The employer is just making a broad aspirational statement in terms of overall goals in their hiring processes.

Fabiola Cineas

And when such challenges do get filed, what do they tend to look like? For example, I’m thinking of Stephen Miller’s organization that’s trying to stop “woke organizations” from engaging in DEI.

Pauline Kim

When somebody challenges an “affirmative action program” what they are alleging is that the employer has discriminated against them based on their race.

There have been a handful of cases in the lower courts. They didn’t get a lot of attention because they weren’t big blockbuster cases. They have involved white candidates or male candidates who have sued and said, “I wasn’t hired” or “I wasn’t promoted” and “The person you hired was a woman or a person of color, or a woman of color. And I think I was discriminated against.”

In trying to prove discrimination, they would point to the fact that the employer maybe had a diversity statement, or maybe the employer did something like announce that they were going to expand to a nationwide search instead of just a local search to ensure a diverse group of candidates. The courts have pretty much thrown those out because those plaintiffs were not able to show that the reason they were not hired was because of their race, or because of their sex, as opposed to because the employer changed their practices and found a more qualified candidate.

So what would a lawsuit look like? Well, under Title VII, it should be an individual who can show that they suffered an adverse action, that they weren’t hired or promoted because of their race or sex. They would have to show that the fact that the employer had a DEI policy meant that in their individual case, that their race was the reason they didn’t get the job.

Fabiola Cineas

Can you say more about hyper-compliance? Is it true that employers, out of fear, will take it upon themselves to rein in their DEI practices?

Pauline Kim

I think that it’s a concern because already there have been advocacy groups on the right who have announced they plan to sue employers and try to challenge their DEI programs. For the reasons I said earlier, I think, overwhelmingly, as far as what I’m aware of, most employers are doing things that are perfectly legal under established law. But sometimes, just the fear of a suit can inhibit them from pursuing these types of policies. That would be unfortunate because it’s really the threat or the fear of being sued, rather than compliance with the law that would be driving it.

Fabiola Cineas

Ultimately, what responsibility do employers have right now?

Pauline Kim

The Equal Employment Opportunity Commission put out a statement saying nothing’s changed in the law, that employers should continue to exhibit their policies and make sure that they are not inadvertently racially exclusionary. Employers do have a responsibility to make sure that they are not using arbitrary practices that disadvantage racial minority groups or other previously disadvantaged groups. It’s not like they can just run away from this completely.

They have a duty under the law to eradicate practices that may not be intentionally discriminatory, but have the effect of harming groups that have been excluded in the past. So, to that extent, I think the EEOC’s statement is right, that employers should continue to develop a very diverse and inclusive workforce.

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