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In late June, the US Supreme Court decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard CollegeNos. 20-1199 and 21-707, 2023 WL 4239254 (USA June 29, 2023), banned race-based affirmative action in higher education. Splitting along ideological lines, the Court’s conservative supermajority ruled, 6 to 3, that the college admissions programs at Harvard and the University of North Carolina violated the Equal Protection Clause of the Fourteenth Amendment. The monumental decision, which set aside 45 years of precedent allowing racially aware admissions policies to target a diverse student body, shook the world of higher education.

But colleges and universities are unlikely to be the only entities affected by Students for Fair Admissions. The decision also raises difficult questions for private employers. While it did not address employers or employment statutes, such as Title VII of the Civil Rights Act of 1964, its rationale and rationale should alert employers that workplace diversity programs may no longer be on secure constitutional grounds. Chief Justice Roberts wrote in the majority opinion that “(e) to eliminate racial discrimination means to eliminate it altogether.” SFFA, 2023 WL 4239254 in *12. This categorical assertion leaves little room for racially conscious initiatives in other contexts.

A Cultural Shift

The Court’s decision in Students for Fair Admissions will affect students today and employees tomorrow. The decision will likely lead to a growing wave of Title VII “reverse discrimination” litigation, opening the door for lower courts — and perhaps eventually the Supreme Court — to reaffirm Title VII’s requirement that race not be considered in hiring ( and dismissal) of employees.(1) Furthermore, the effects Students for Fair Admissions will reverberate in the workplace in other ways. The decision will almost certainly spur a cultural shift in hiring, the initial wave of which can already be felt.

Chief Justice Roberts’ opinion was based heavily on Grutter v. bullyingis, 539 US 306, 123 S. Ct. 2325, 156 L.Ed. 2d 304 (2003). Bigger held that the Equal Protection Clause did not prohibit the University of Michigan Law School’s restricted use of race in its admissions process to achieve the compelling interest of educational benefits resulting from a diverse student body. Bigger also reaffirmed Judge Powell’s opinion by announcing the judgment of a fragmented Court in Regents of the Univ. from california v. bake, 438 US 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978) “as the touchstone for constitutional analysis of racially aware admission policies”. See Grutter539 US at 323. But Bigger it contained a caveat with considerable social and cultural implications—a caveat over which the Chief Justice of the Supreme Court hung the majority’s hat. Specifically, the Bigger The Court perceived affirmative action as a time-limited concept. Justice O’Connor’s majority opinion held that race could be used as a factor in college admissions only as long as necessary to promote a compelling interest in gaining the educational benefits that result from having a diverse student body. I went. at 342-43. While the Bigger The court prophesied: “(We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” I went. at 343.

According to Chief Justice Roberts and the other five Republican-appointed judges, that day has arrived—five years ago. In their view, the “racial preferences” involved in affirmative action are no longer necessary to achieve diversity in schools. The ultimate goal, as the Court historically conceived it, was to arrive at a place where the promises of the Equal Protection Clause could be realized without any regard to race. Declaring racial discrimination “unpleasant in all contexts”, SFFA, 2023 WL 4239254, at *15, most concluded that affirmative action programs at Harvard and UNC (and by implication, countless other institutions) did not satisfy the rubric of “tight scrutiny” applicable to race-based classifications. The days of expressly considering race in the pursuit of a more diverse and equitable student population are over.

The Supreme Court’s unabashedly hostile view of racially conscious policies designed to increase the inclusion and participation of historically disadvantaged minorities in American life could have significant hiring implications. Employers must now pause and consider what the Court’s decision means for the hiring process. On the day of decision, EEOC Commissioner Andrea Lucas wrote an article about Students for Fair Admissions’ impact in the workplace. She noted that: “Ill-structured voluntary diversity programs pose legal and practical risks for companies. These risks existed prior to the Supreme Court ruling today. Now they can be even bigger.”

While the Court’s opinion did not change the federal anti-employment discrimination laws, they now stand on more precarious foundations—both socially and legally. The Supreme Court announced that the United States has reached the point where no special consideration should be given to an individual’s race in achieving diversity in higher education. It doesn’t take a huge leap to translate this conclusion into the work context. Because Title VII already mandates a color-blind approach to hiring and termination, employers and employees already inclined to agree with that conclusion now have legal dictates – and an understanding Supreme Court – to motivate other courts to follow the strict approach to Title VII review, that takes no account of a person’s “background circumstances”. As anticipated, this shift could have a major impact on corporate diversity initiatives and talent pipelines.

Paving the way for Title VII litigants

Title VI and Title VII are two separate, though similar, parts of the Civil Rights Act of 1964. Title VI – at issue in the Students for Fair Admissions— governs discrimination in higher education. Title VII governs discrimination in employment. While the case did not directly address Title VII, it may provide a direct on-ramp for Title VII litigants who wish to have a “color-blind” workplace.

Currently, affirmative action plans are only allowed in the workplace in very restricted (and usually remedial) environments. However, race-conscious employee programs are common. Many employers have diversity statements or programs, affinity groups, race-specific mentoring and support programs, special internships or scholarship positions for individuals from diverse backgrounds, and much more. These programs have been the subject of “reverse discrimination” lawsuits with varying degrees of success. In some jurisdictions, courts have amended the first part of the prima facie Title VII claim of discrimination to require a demonstration of “substantive circumstances (which) support the suspicion that the defendant is the unusual employer who discriminated against the majority.” shea against kerry, 961 F. Supp. 2d 17, 31 (DDC 2013), aff’d, 796 F.3d 42 (DC Cir. 2015). Other courts do not require such a display and are dedicated to a rigorous review of the traditional elements of Title VII. see for example, Smith v. Lockheed-Martin Corp.644 F.3d 1321, 1325, n.15 (11th Cir. 2011).

Litigants who believe they have been harmed by these types of diversity initiatives will no doubt try to translate the Court’s color-blind view of the questionable constitutionality of such initiatives from higher education to the workplace. And, unfortunately for the employers who have honed and developed these diversity initiatives, future litigants now have persuasive legal support to bolster their Title VII arguments. In particular, Justice Gorsuch’s concurrence emphasized the transferability of Title VI to Title VII. He stated:

If this exposition of Title VI sounds familiar, it should. Right next door, in Title VII, Congress made it illegal. . . for an employer. . . discriminate against any individual. . . because of that individual’s race, color, religion, sex or national origin. . . This Court has also long recognized that when Congress uses the same terms in the same statute, we must presume that they “mean the same.” And that presumption certainly makes sense here, for, as Justice Stevens recognized years ago, “(b) both Title VI and Title VII” codify a categorical rule of “individual equality, without regard to race.” . .

But the dissent does not dispute that everything said here about the meaning of Title VI follows the precedent of this Court. . . interpreting materially identical language in Title VII. . . The words of the Civil Rights Act of 1964 are not like mood rings; they don’t change their message from one moment to the next.

Students for Fair Admissions2023 WL 4239254, at *51, 56 (Gorsuch, J., agreeing) (internal citations omitted).

Between the dictates of Justice Gorsuch’s concurrence and the restrictive color-blind approach called for by Justice Roberts’ majority opinion, there’s plenty of fodder for future Title VII litigants. And these litigants can get support not only from the Supreme Court but also from the EEOC. Reflecting on the decision, EEOC Commissioner Andrea Lucas pretty much adopted Roberts’ color-blind approach to the workplace. “(The EEOC’s mission) is to prevent and eliminate discrimination, not to impose ‘equitable’ outcomes,” she said. But at what cost? See SFFA, 2023 WL 4239254, at *95 (Jackson, J., concurring) (“There are Gulf-sized racial differences in the health, wealth, and well-being of American citizens.”). Time will tell.


(1) Notably, Title VII already mandates a color-blind approach to hiring and terminating employees. see for example, Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325, n.15 (11th Cir. 2011). Despite this, lower courts are divided on the rigor with which this requirement is enforced. Thus, Title VII claims resulted in mixed results.