The Supreme Court’s affirmative action ruling Thursday related to college and university admissions could affect hiring practices at businesses, experts say.
In the 6-3 ruling, with Justice Ketanji Brown Jackson recusing herself from the case, the High Court ruled that colleges and universities no longer can use race as a factor in their admissions decisions. An implication, according to experts, is that business owners better take a look at their hiring practices.
Whereas Title VI of the Civil Rights Act and the Equal Protection Clause that apply to education informed the affirmative action decision, Title VII applies anti-discrimination laws to employment, attorney Andrew Lieb told the McKnight’s Business Daily. “As such, it is very possible that the affirmative action decision restricts diversity, equity and inclusion (DEI) efforts in employment by restricting race being a consideration just like it did in education,” he said.
“Specifically,” Lieb continued, “employers have always operated, in business, with the understanding that racial quotas are illegal, but now, moving forward, the understanding is that race can only be a factor, in the micro, when it comes to the character of the individual.”
The recent decision only is loosely applicable to private-sector employers, according to shareholder attorney Jack Blum and associate attorney Shivani H. Patel of the Polsinelli law firm. At the same time, they said, Title VII and Title VI have very similar language, and the effect of the Court’s decision “will likely bleed over into Title VII case law.”
So can employers use race as a criteria for hiring? Yes, according to the lawyers, as long as race is not used to fill a quota.
“Employers may continue to focus their Affirmative Action efforts on increasing the pipeline of qualified applicants from underrepresented groups. Employers are not required to abandon their ongoing DEI efforts, but should be mindful of the potential for discrimination claims (which may include reverse discrimination claims),” Blum and Patel wrote.
“It would be prudent to review your company’s DEI commitments and initiatives, along with hiring policies, to ensure they are encouraging diversity while not crossing the line into discrimination. This is particularly true given the publicity the Supreme Court’s decision has generated,” the Polsinelli attorneys wrote.