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October 31, 2023 HUMAN RIGHTS

Are Employer Minority and Gender Diversity Efforts Dead?

by Mark I. Schickman

The concept of affirmative action was created by Executive Orders 11246 and 11375, issued by republican President Richard Nixon and Texas Democrat President Lyndon Baines Johnson. Those orders created affirmative action obligations on the part of federal contractors to hire more women and minorities. For a half century, the courts have debated whether the contracting rule was a permissible goal or impermissible race and gender discrimination. Moderate republican justices including Sandra Day O’Connor have provided the swing votes keeping the concept of affirmative action alive.

In the companion cases of Students for Fair Admissions v. Harvard University and the University of North Carolina, in the context of public and private universities, the U.S. Supreme Court struck down the 60-year-old institution of racial preference affirmative action. After determining that affirmative action was at best a temporary correction whose time had ended, Justice John Roberts fiercely rejected the concept of stereotyping writing,

"race may never. . . operate as a stereotype; . . . this Court has rejected the assumption that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike; . . . stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts—their very worth as citizens—according to a criterion barred to the Government by history and the Constitution. . . . can only cause[] continued hurt and injury, . . . all racial stereotypes harm and demean individuals. . ."
The concept of affirmative action was created by Executive Orders 11246 and 11375, issued by Presidents Richard Nixon and Lyndon B. Johnson.

The concept of affirmative action was created by Executive Orders 11246 and 11375, issued by Presidents Richard Nixon and Lyndon B. Johnson.


There is little doubt that sentiment will prevail in the public employment context, in which employee complaints will be clothed in equal protection garb. It is also very likely that it will apply in the private employment context, making suspect any program that relies on race or another protected characteristic as a definitive qualification. In the weeks after the Harvard decision, several employers already faced suits from the same parties who took on Harvard, including challenges to the diversity scholarship programs of giant law firms Morrison Foerster and Perkins Coie.

Morrison Foerster has changed its eligibility criteria from students “who are members of historically underrepresented groups in the legal industry” to students “with a demonstrated commitment to diversity and inclusion in the legal profession.” The law firm representing Morrison Foerster in that action, Los Angeles-based Gibson Dunn, similarly removed from its own diversity scholarship program the limitation that the applicant law student must “identify with an underrepresented group.” Perkins Coie has expressed its intent to defend its minority preference program, writing “we re-affirm our commitment to building a more diverse and inclusive workplace and legal profession.”

This ruling should not mean the end of diversity efforts in the private sector. Justice Roberts’s majority opinion conceded that “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.” Thus, an individualized examination of an applicant’s ability to overcome challenges can include a discussion of how she overcame racial barriers. Similarly, making sure that recruitment efforts go beyond Ivy League schools and include Historically Black Colleges and Universities, among others, is still likely an appropriate mechanism to make sure the applicant pool is diverse. 

An object lesson may be found in employers in California, which banned affirmative action by constitutional amendment in 1995 through Proposition 209. Notwithstanding that severe restriction, UC Davis Medical School has found other mechanisms to obtain a ranking as the third most diverse medical school in the country.

Finally, wholly aside from recruitment and hiring, employers find that the most significant challenge to diversity in the workforce is retention; it is easier to attract women and minority candidates than to keep them. The effective tools for doing so, such as providing implicit bias training, mentoring, satisfying work assignments, and an atmosphere welcoming to and supportive of women and lawyers of color, are not disturbed by the Supreme Court’s ruling.

The ultimate debate fought sharply in the dueling concurring opinion of Justice Clarence Thomas and dissenting opinions of Justices Ketanji Brown Jackson and Sonia Sotomayor is whether the need for affirmative action is gone. The Pew Research Center’s Labor Day 2023 report still shows the unemployment rate among Black workers as double that of the United States overall, with wages about 85 percent of white employees. Women comprise 43 percent of all managerial jobs but with a persistent wage gap of 81 percent of their male colleagues. While there has certainly been progress, a strong case can be made that affirmative action remains necessary to create a level playing field.

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Mark I. Schickman

ABA Civil Rights and Social Justice Section Delegate

Mark I. Schickman has served on the ABA Board of Governors and has chaired the ABA Section of Civil Rights and Social Justice, the ABA Commission on Domestic & Sexual Violence, and the Standing Committee on Pro Bono and Public Service.