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What the Supreme Court’s likely ruling in the UNC/Harvard cases might mean for employers

11.07.22

Last Monday, the U.S. Supreme Court heard oral argument in two cases challenging the use of race as one factor among many by colleges in considering student applicants. The cases are Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Presidents and Fellows of Harvard College. The Supreme Court appears prepared to overturn multiple decisions of the Court over the last 50 years and rule the practice impermissible. The Court’s decision could ultimately affect employment practices, too.

Race and the law

The legal issues are complex. The Fourteenth Amendment to the U.S. Constitution prohibits the government from depriving citizens of the “equal protection of the laws.” UNC is a public university, and the plaintiffs in that case argue that the university’s consideration of race violates this prohibition. Harvard, as a private university, is not explicitly regulated by the Fourteenth Amendment. Instead, the case against Harvard relies on Title VI of the Civil Rights Act of 1964, which prohibits any entity receiving federal financial assistance – as Harvard does – from discriminating on the basis of “race, color, or national origin.” The Supreme Court has held that Title VI’s protections match those of the Fourteenth Amendment’s Equal Protection Clause, and thus, the analyses are essentially identical.

The Supreme Court first considered race in college admissions in Regents of University of California v. Bakke in 1978. In Bakke, the Court held that the goal of achieving a diverse student body was sufficiently compelling to justify consideration of race in admissions. The Court affirmed this finding in later cases, but not without serious questions or criticisms from some Justices.

Now, the Court seems inclined to rule that the Equal Protection Clause is race-neutral and thus prohibits the colleges’ practices.

Originalism?

An underlying theme in these cases and other recent Supreme Court decisions is the steadfast embrace of originalism by a majority of Justices – the concept that in interpreting Constitutional provisions, courts must look to the time at which the provisions were drafted and the intent of their drafters.

How (or whether) the conservative members of the Court apply originalism in these cases will be interesting. As Harvard has argued, the Fourteenth Amendment, along with the Thirteenth and Fifteenth Amendments, are the Reconstruction Amendments, passed in the aftermath of the Civil War by a “radical” Republican Congress that intended to favor and improve the lives of Black Americans, particularly those recently released from bondage. With that background, the application of the facially race-neutral Equal Protection Clause becomes more complex.

Employers beware

Be that as it may, if the Court holds that the Fourteenth Amendment and Title VI must be applied in a race-neutral fashion, its reasoning is likely to extend to other areas of the law. Title VII of the Civil Rights Act prohibits discrimination in employment on the basis of “race, color, religion, sex or national origin.” Unlike with college admissions, the Supreme Court has never approved the unrestricted use of race (or other protected characteristics) as a factor in hiring. However, it has occasionally allowed targeted and time-limited affirmative action plans to address disparities in particular workplaces. The U.S. Equal Employment Opportunity Commission also has guidelines that allow for voluntary affirmative action in limited circumstances, but those plans are rare and may be difficult to defend in court.

At the same time, private employers of all types have increasingly recognized the business and moral reasons for seeking and promoting a diverse workplace. Employer efforts have taken the form of internship or mentorship programs designed for women and persons of color, and targeted recruitment from historically Black colleges and universities. Some employers may be using race as a factor in employment decisions, resulting in what seems to be an increase in reverse discrimination lawsuits brought by white employees or prospective employees.

Rather than using race (or other protected characteristic) as a factor in hiring, the generally recommended practice is to spend the time and energy to develop diverse candidate pools to which neutral selection processes are applied. For example, the well-regarded Mansfield Rule requires that three out of ten candidates for a position be from underrepresented groups, a threshold which will result in a more diverse workplace according to some research.

However, if the Supreme Court endorses a strict race-neutral reading of Title VI for purposes of college admissions, it may do the same for Title VII when it comes to employment. For sure, such a ruling in the Harvard and North Carolina cases will inspire Title VII lawsuits making similar claims. These lawsuits are likely to challenge processes that appear to provide preferential treatment on the basis of race, sex, or other protected characteristic. Even the now-ubiquitous expressions of promoting workplace diversity could potentially become evidence relevant to alleged unlawful employment practices. When the Supreme Court issues its decision, employers should pay careful attention.

Thanks very much to Cara Crotty, who contributed to this bulletin.

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