Courts

There's No Way The Effects Of The Affirmative Action Cases Will Stop At College's Front Door

I'm going to change the last name on my resume to something safer just in case. How's Christopher Smith? They'd give him a job for sure.

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diversity handsThe affirmative action cases involving Harvard and the University of North Carolina are set to make waves whichever way the Supreme Court rules. The work of jurisprudence professors and school administrations alike could change drastically on what this Court decides to do with the legacy of Bakke. But the ramifications of the outcome are likely to spill over to impact the places we work as much as the places we think. From Bloomberg Law:

Rulings on college affirmative action programs don’t directly apply to workplace policies. Instead, employer DEI and affirmative action programs are governed by Title VII and other federal and state employment anti‑discrimination laws. Under these laws, using protected classes, such as race, to make employment decisions is generally unlawful, even if intended to increase diversity.

However, the court’s decision could encourage challenges to workplace DEI and affirmative action programs and undermine some rationales used to support DEI initiatives and affirmative action measures in the workplace. As a result, employers should understand the differences between permissible and potentially unlawful DEI and affirmative action programs.

As a practical matter, the Bloomberg article gives some heuristics on how the business minded (read: HR and whomever is doing the hiring) should plan to accommodate to a world where Justices Thomas and Roberts get to decide what acting with racial equity in mind means. Justices Kavanaugh and Gorsuch are admittedly a bit harder to place once you consider their judicial and hiring track records.

The court’s decision in the college admissions cases is likely to impact employer diversity initiatives in several ways. The court’s opinion could indicate that race-conscious decisions aimed at remedying historical imbalances are either no longer necessary—due to the passage of time since the initial implementation of affirmative action—or lead to undesirable outcomes.

Potential plaintiffs might use the court’s reasoning to challenge voluntary workplace affirmative action programs on the basis that such programs are no longer necessary to eliminate a manifest imbalance in a job category. Further, the reasoning can be used to support challenges to common DEI initiatives—like diversity fellowships or internships—on the basis that these programs place too much emphasis on protected class membership.

I imagine that it would be hard to prove that it is no longer necessary to “eliminate a manifest imbalance” considering that Black and Asian applicants who whiten their resumes are twice as likely to get calls for interviews. And I don’t mean putting down that you enjoy Chess instead of Go as your go-to game for leisure. It has been well documented that people discriminate against prospective employees if their name doesn’t sound white enough. Just their names. Literally the first line of the thing. For at least the last two decades. And as far as diversity leading to less desirable outcomes? Diversity in the workplace has been shown to produce teams that are more creative and make better decisions.

Nonetheless, the law is the law. And by that, I mean there are six robed figures in the mood to overrule whatever laws get in the way of White Christian Nationalism. In the meantime, work on whitening up your resumes.

Affirmative Action Cases Could Threaten Employer DEI Initiatives [Bloomberg Law]

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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.

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