The Supreme Court overturned its precedent and held that the goal of achieving a diverse student body cannot justify using race as a "plus factor" in college admissions. It ruled that doing so violates the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act.
The opinion does not directly apply to private employers. This is because the Equal Protection Clause applies only to federal and state actors, and the protections from discrimination under Title VI apply only to recipients of federal funding.
Unlike in higher education, in the employment context, affirmative action that involves racial or gender preferences to achieve diversity has never been permissible. Under Title VII, private employers' race- or gender-conscious affirmative action is unlawful without a remedial purpose.
Although the opinion does not change the landscape for private employers, they should anticipate increased scrutiny and challenges to workplace affirmative action plans and diversity initiatives. They should, therefore, review practices to ensure they are being carried out in a manner that is not vulnerable to attack
The Supreme Court has held that Title VII does not prohibit race- or sex-based affirmative action plans in the workplace, so long as the plans meet specific criteria. In particular, an affirmative action plan must be justified by a manifest imbalance reflecting an underrepresentation of minorities or women in traditionally segregated job categories. Any race- or gender-based preference in the plan must be adequately tailored to cure the disparity without unnecessarily trammeling the interests of non-minorities or males.
The EEOC implemented Title VII regulations that similarly restrict affirmative action. For employers to engage in race- or gender-conscious employment decisions, they must (i) have a written plan; (ii) engage in reasonable self-analysis of the relevant employment practice; (iii) have a reasonable basis to conclude from the self-analysis that the relevant employment practice has hurt previously excluded groups or groups whose opportunities have been artificially limited; (iv) include reasonable action in the plan that is narrowly tailored to solve the problem identified without placing unnecessary restrictions on the workforce as a whole; and (v) maintain the plan no longer than necessary to achieve the plan's objective.
Employers who wish to develop written affirmative action plans should ensure their plans are remedial, narrowly tailored to cure documented and identified statistical imbalances in specific jobs, temporary, and do not unduly harm non-beneficiaries of the preference.
Many workplace diversity initiatives include transparent goals and employment programs that take race, gender, and ethnicity into account. When implementing and updating diversity initiatives and programs, there are several important takeaways from the Harvard Opinion employers should consider:
Race or gender should not be a plus factor to improve workplace diversity. Race or gender can only be used as a plus factor when an employer has a written affirmative action plan that meets the criteria.
Race or sex should not be a factor when deciding who advances at any stage of the selection process.
Beyond sourcing and recruiting to ensure a diverse pool, diversity initiatives should not consider race or ethnicity at any point in the selection process. Diverse slate requirements should be implemented in a manner where a candidate's gender, race, or ethnicity is not being used to decide whose resume moves forward or who advances to the interview stage if doing so is at the expense of advancing a majority group candidate who would have made the cut absent the diversity requirement.
Representation goals based on EEO-1 categories should be reconsidered. The Supreme Court correctly pointed out that the six EEO-1 race and ethnicity categories are both over-inclusive and underinclusive if used to measure true diversity of thoughts, ideas, and perspectives. These concerns may draw into question the weight companies are placing on EEO-1 diversity metrics gains or losses.
Diversity initiatives should not be a zero-sum game. Lawful diversity initiatives should be designed to expand opportunities for underrepresented groups without negatively impacting opportunities for those in the majority. Diversity initiatives that are a pathway to permanent employment or advancement initiatives that provide a leg up on promotion should not be open only to minorities or women because they could be recast as negatively impacting opportunities for the majority group. Employers should carefully establish the criteria for diversity-based hiring and advancement programs and focus on a potential participant's life experiences, including how diverse characteristics of any kind have affected their lives, whether through discrimination, inspiration, or otherwise. Employers might consider documenting the reasons for their final selections. Hence, it is clear the decisions were made for reasons other than the inherent benefit of race for race's sake, which the Harvard Opinion describes as impermissible stereotyping.
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