In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (the “Harvard Opinion”), the United States Supreme Court overturned its past precedent and held that the goal of achieving a diverse student body cannot justify using race as a “plus factor” in college admissions, and doing so violates the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act. The below discusses the impact of this decision on employers
The Impact of the Court’s Opinion on Employers
The Court’s Harvard Opinion does not directly apply to private employers. This is because the Equal Protection Clause applies only to federal and state actors, and the protections from discrimination under Title VI apply only to recipients of federal funding.
Moreover, unlike in higher education, in the employment context affirmative action that involves racial or gender preferences to achieve diversity has never been permissible. Rather, under Title VII, race- or gender-conscious affirmative action by private employers is generally unlawful in the absence of a remedial purpose. Thus, although the Harvard Opinion does not change the landscape for private employers, where the use of affirmative action is already extremely limited, employers should anticipate increased scrutiny and challenges to their workplace affirmative action plans and diversity initiatives. Employers should therefore review their practices to ensure they are being carried out in a manner that is not vulnerable to attack under Title VII and the Supreme Court’s teachings.