Affirmative Action Ruling May Upend Hiring Policies, Too

As a legal matter, the Supreme Court’s denial of race-conscious admissions in higher education does not in itself prevent employers from pursuing diversity in the workplace.

At least this is how lawyers, diversity experts and political activists from all walks of life, from conservatives who argue that strong affirmative action programs are already illegal, to liberals who argue that they have a strong legal basis. Conclusion.

But many experts believe that, in practice, the ruling encourages litigation under existing legal standards, discourages companies from adopting ambitious diversity policies in hiring and It argues that it will encourage policy restraint.

Following Thursday’s decision affecting college admissions, the law firm encouraged companies This is to review our diversity policy.

Alvin B. Tillery Jr., director of the Center for Diversity and Democracy Studies at Northwestern University, said, “Think of corporate lawyers who think their main job is to keep organizations from being sued. “I’m worried. I’m worried about excessive compliance.” , advises employers on diversity policies.

Programs that promote the hiring and promotion of African-Americans and other minority workers have been prominent in the American corporate world in recent years, especially in the 2020 Minneapolis police officer’s killing of George Floyd following the killing of George Floyd. .

Even before the university lawsuit was decided, companies were feeling legal pressure to tackle diversity. Over the past two years, a lawyer has flea market group sent a letter to american airlines, McDonald’s And many other companies are demanding the cancellation of employment policies the group claims are illegal.

The free market group, the National Center for Public Policy Research, acknowledged that Thursday’s results were not directly related to the fight against affirmative action in American companies. “Today’s decision is immaterial. It dealt with a special cut to education,” said Scott Shepard, a fellow at the Center.

Shepard nonetheless claimed victory, arguing the ruling would help deter employers from overstepping the law. “After this decision, it became even clearer that we cannot afford to fudge on the edge,” he said.

(American Airlines and McDonald’s did not respond to requests for comment on their hiring and promotion policies.)

Charlotte A. Burroughs, nominated by President Biden to chair the Equal Employment Opportunity Commission, was also quick to declare that nothing had changed. The decision “does not address employers’ efforts to develop a diverse and inclusive workforce or to tap into the talent of all qualified workers regardless of background,” he said. Stated.

Some companies targeted by conservative groups emphasized this point. “Novartis’ DEI program is rigorously coordinated, fair and equitable, and compliant with current law,” the pharmaceutical company said in a statement, referring to diversity, equity and inclusion.I also received Novartis A letter from a lawyer representing Mr. Shepard’s groupcalled for a change in the law firm’s hiring policy.

Beyond government contractors, affirmative action policies in the private sector are largely voluntary and regulated by state and federal civil rights laws. These laws prohibit employers, whether for or against candidates, from making hiring or promotion decisions based on characteristics such as race or gender.

The exception is that companies can take race into account if members of a racial minority were previously excluded from a job, according to Jason Schwartz, a partner at law firm Gibson Dunn. It is said that For example, when an investment bank hires a black banker after excluding blacks. People who have been in such jobs for decades. In some cases, employers can also take into account the historical exclusion of minority groups from the industry, such as blacks and Latinos in the software industry.

In principle, the logic of Supreme Court rulings on college admissions could threaten some of these programs, such as those aimed at addressing industry-wide discrimination. But the way employers typically make decisions about hiring and promotions is different from the way universities make admissions decisions, so litigation may be a stretch here too.

“What troubled the court was that the admissions program in question treated race as a positive regardless of the individual student,” said an employment law expert at the University of Washington in St. Louis. Professor Pauline Kim said in an email. But “hiring decisions are often individual decisions focused on candidate and job fit,” she says.

A more meaningful impact of the court’s ruling is likely to put even greater pressure on policies whose legal basis was already questionable. These may include leadership acceleration programs and internship programs that are open only to members of underrepresented minority groups.

Mike Derricatt, a partner at Orrick and an employment law expert, said many companies were vulnerable to policies that violate civil rights laws on paper, but in practice they do. He said he might feel that For example, corporate policies may encourage recruiters to seek out more diverse candidates, from which hiring decisions are made regardless of race. But if recruiters implement policies in a way that effectively sets racial quotas, it is illegal, he said.

“The devil is in the details,” says Derricat. “They interpreted it to mean, ‘Come back with 25 percent of the internship class that must be from an underrepresented group or you’ll be accused of being a bad recruiter.’ I wonder?”

Supreme Court college admissions cases have largely remained silent on these employment-related issues. Nonetheless, Derricat has counseled clients that they need to make sure their company’s policies are sound, as litigation is likely to increase since the court agreed to hear the case. said that

Part of the reason is the growing attack from the political right on corporate policies aimed at diversity in employment and other social and environmental goals.

Florida Governor Ron DeSantis, who is running for the 2024 Republican presidential nomination, lamented It declared an “awakened mind virus” and Florida as “the state where the awakened die.”The state has enacted laws that Limit diversity training at work Limited The State Pension Fund will stop investing on the basis of investments that consider the “environmental, social and corporate governance awakening”.

Conservative legal groups are also converging in this area. In a letter to the Equal Employment Opportunity Commission, a group run by Trump administration White House adviser Stephen Miller said that US diversity and inclusion policy some big companies was illegal and asked the commission to investigate. (Miller’s group did not respond to requests for comment on these incidents.)

The National Public Policy Research Center, which challenges corporate diversity policies, Sues Starbucks directors and officers After they refused to reverse the company’s diversity and inclusion policy, letter I am asking you to do so. (Starbucks did not respond to a request for comment for this article, but directors told the group that “accepting the request and withdrawing the policy is not in Starbucks best interest.”)

Shepard, a fellow at the Center, said it was “quite possible” that more lawsuits would follow if other companies didn’t comply with calls to curb their diversity and inclusion policies.

Former Equal Employment Opportunity Commission General Counsel David Lopez said one modest way to do so is to use race-neutral yet diverse candidates, such as focusing on whether a candidate has overcome significant obstacles. to develop policies that are likely to promote sex, he said.

Lopez said in the Supreme Court majority opinion that Chief Justice John G. Roberts Jr. will consider the consequences of a candidate overcoming racism unless the university considers it. He pointed out that he argued that he could. candidate election itself.

But Dr. Tillery of Northwestern University said making such changes to the business diversity program could be an overreaction to the ruling. While the Federal Civil Rights Act of 1964 generally prohibits making hiring and promotion decisions for individuals based explicitly on their race, there are obstacles preventing companies from having a more diverse workforce. Employer allows removal. Examples include training to ensure managers and recruiters are not unwittingly discriminating against racial minorities, or advertising jobs on specific campuses to increase potential applicants. And so on.

After all, companies seem to face a greater threat from lawsuits over discrimination against members of minority groups than over discrimination against whites. There were about 2,350 allegations of the latter form of discrimination in employment in 2021, according to the Equal Employment Opportunity Commission. 21,000 Overall race-based pricing.

“There’s an intrinsic interest in picking your own poison,” says Dr. Tillery. “Is it a lawsuit from a right-wing group that doesn’t exist in Stephen Miller’s real world? A lawsuit from someone who can tweet

He added, “I’m going to drink Steven Miller’s poison anytime.”

J. Edward Moreno Contributed to the report. Susan C. Beachy Contributed to research.

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