Affirmative action and race-conscious decision making have been recent topics of discussion following the Supreme Court’s June ruling that affirmative action and race-conscious decision making in education are violations of the Equal Protection Clause of the Constitution. While the decision will have a major impact on higher education, the effects do not yet extend to employers’ diversity efforts.
Although affirmative action is a broad concept that covers many situations, including education and employment, the Supreme Court’s decision only applies to college admissions. The Equal Opportunity Employment Commission (“EEOC”) addressed the ruling, stating that the decision “does not address employer efforts to foster diverse and inclusive work forces.” Additionally, the decision considered the affirmative action programs in the context of a zero-sum environment, in which race factors could be construed as a “plus” or “minus” for a particular applicant. On the other hand, the goal of most employers’ DEI and voluntary affirmative action programs are not to discriminate based on race, but to embrace and encourage equal opportunities for employees of all races and ethnicities and decrease bias in decision making. Further, federal contractors are still required to have affirmative action plans, as outlined in Executive Order 11246.
While the current ruling only applies to higher education, it is possible that lower courts will choose to apply the analysis to other contexts, including employment. However, any implications would take time to take effect, and would likely also face significant litigation. Employers should monitor relevant laws and regulations and review their DEI and affirmative action policies and programs to ensure current compliance and prepare for any future changes.
If you have questions about DEI or affirmative action programs, please reach out to any member of Gardner Skelton’s healthcare team.