The U.S. Supreme Court’s decision to strike down affirmative action in college admissions is likely to encourage more lawsuits against other race-conscious policies, including in employment, says an employment law expert at Washington University in St. Louis.
“A majority of the court has clearly expressed a general antipathy to explicitly race-based policies that are intended to improve equity,” said Pauline Kim, the Daniel Noyes Kirby Professor of Law. “As a result, ideologically motivated litigants will try to challenge companies’ diversity, equity and inclusion programs.”
However, she said, the implications of the decision for employment are not clear, because these challenges would be decided under Title VII, the statute that prohibits employment discrimination, not the U.S. Constitution.
“There is a broad array of tools for building a diverse and inclusive workforce that do not involve race-based hiring decisions and are clearly legal under Title VII,” Kim said.
For example, an employer could decide to expand where it advertises job openings or recruits candidates to draw a more diverse applicant pool. Making changes to its hiring procedures to level the playing field for all does not involve making individual personnel decisions based on race, and so is not discriminatory.
Kim is a nationally recognized expert on workplace laws and has written widely on issues such as job security, employee privacy, employment discrimination and judicial decision-making. Her 2022 paper on “Race-Aware Algorithms: Fairness, Nondiscrimination and Affirmative Action,” published in the California Law Review, examines what actions can be taken to de-bias discriminatory algorithms without violating anti-discrimination law.
The court’s affirmative action ruling could raise new questions about whether an employer may take race into account as a factor in hiring or promotion decisions, Kim said.
“The court majority disapproves of universities’ race-based admissions programs but also says that ‘nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise’,” she said.
“What seems to bother the court is that the admissions programs at issue treated race as a plus without regard to the individual student, because it says that ‘A benefit to a student who overcame racial discrimination . . . must be tied to that student’s courage and determination.’ This suggests that individualized consideration of the impact of race is permissible.”
This matters in the employment context because employment decisions are more often individualized decisions, she said.
“So, if, for example, an employer decided to hire a black candidate over a white candidate because the former demonstrated that she had strong ties to a community that the employer was trying to serve, that would not seem to be the sort of race-based classification that the court has disapproved. Instead, it seems more akin to admitting a particular student who displayed courage and determination in overcoming racial discrimination,” Kim said.