Supreme Court ruling on affirmative action in college admissions changes nothing for employers

July 8, 2023

The U.S. Supreme Court recently ruled that colleges could not use race as a factor in determining college admissions. Giving preference to race is often referred to as “affirmative action.”

The Supreme Court’s decision, and the rhetoric around the analysis by the court, could leave employers wondering about current laws around affirmative action, and their impact on business.

The decision changes nothing for employers, because affirmative action, meaning preferences or quotas, is not legal in the employment context.

Discrimination in the workplace based on any protected characteristics, including race or gender, is not legal and hasn’t been since the civil rights laws were passed decades ago.

Starbucks recently learned this lesson when a jury awarded a former white regional manager over $25 million after it concluded that Starbucks fired her because of her race. This followed a highly publicized incident in which two Black men, who were waiting for a business meeting, were arrested after a Starbucks employee called police.

The former manager sued Starbucks contending that the company fired her in order to demonstrate it properly responded to the incident and in doing so punished white employees who were not even involved in the arrests. She further alleged that Starbucks didn’t take action against the Black district manager of the store.

The Equal Employment Opportunity Commission’s commissioner issued a statement after the Supreme Court decision, encouraging employers to maintain their diversity programs, which are legal so long as they do not place quotas or preferences for employment decisions. She said the decision “does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background. It remains lawful 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.”

This is true before and after the Supreme Court case.

Many private employers who are federal contractors (i.e., do business with the federal government) have an obligation to implement what the government refers to as affirmative action programs. Even those employers cannot engage in preferences or quotas, but must instead implement a plan to attract applicants and engage in nondiscrimination, including by casting a wide net to find diverse candidates. However, employment decisions must be nondiscriminatory.

In fact, the regulations applicable to these employers state that: “Placement goals may not be rigid and inflexible quotas, which must be met, nor are they to be considered as either a ceiling or a floor for the employment of particular groups. Quotas are expressly forbidden.”

The regulations further state: “In all employment decisions, the (employer) must make selections in a nondiscriminatory manner. Placement goals do not provide the (employer) with a justification to extend a preference to any individual, select an individual, or adversely affect an individual’s employment status, on the basis of that person’s race, color, religion, sex or national origin.”

The regulations provide that “placement goals do not create set-asides for specific groups, nor are they intended to achieve proportional representation or equal results.”

Finally, they clarify that “placement goals may not be used to supersede merit selection principles. Affirmative action programs prescribed by the regulations in this part do not require (an employer) to hire a person who lacks qualifications to perform the job successfully, or hire a less qualified person in preference to a more qualified one.”

I had a participant in one of my trainings advise that her department identified hiring younger workers as a business priority because of so many upcoming retirements. She asked if it was legal to hire only younger workers since it was for business reasons. The answer? “No, not legal.” You can’t carve out a “business” excuse to discriminate against older workers in the name of diversity or business need.

With the increase in diversity, equity and inclusion programs, some employers, with their zeal to demonstrate diverse representation, may not have realized the illegality of these types of decisions. Employers cannot rely upon a business rationale for doing so, or even customer preference. None of that justifies discrimination.