Effect of the Supreme Court's Harvard/University of North Carolina Decision on State and Local Government Employers
On June 29, 2023, the U.S. Supreme Court issued a consolidated opinion in the cases of Students for Fair Admissions v. President and Fellows of Harvard College, No. 20–1199 and Students for Fair Admissions v. University of North Carolina, No. 21-707 holding Harvard and UNC’s race-conscious admissions programs violate the Equal Protection Clause of the Fourteenth Amendment, as well as Title VI of the Civil Rights Act of 1964 (which prohibits recipients of federal funds from engaging in, among other things, race discrimination).
The Supreme Court’s Equal Protection Analysis
In analyzing the admission practices under the Equal Protection Clause, the Supreme Court observed that a policy or practice authorizing race-based decision-making by state or local governmental actors is regarded by the courts as “inherently suspect,” meaning that it will be strictly scrutinized to determine (a) whether the consideration of race advances a “compelling government interest” and, if so, (b) whether the racial aspect of the policy or practice is “narrowly tailored” to achieve that interest. The admission practices failed both components of the equal protection analysis, because the expressed interests—while acknowledged as commendable—were effectively unmeasurable and therefore not subject to meaningful judicial review on either point. The Court made clear, however, that its holding did not preclude the possibility that a college or university’s race-conscious admissions program could survive the Equal Protection Clause’s strict scrutiny analysis.
What Impact Does the Supreme Court’s Decision Have on Employers?
Because the Equal Protection Clause applies with equal force in the context of public employment, state and local government employers across the country—as a result of the Supreme Court’s decision—are expressing concerns regarding the constitutionality of their affirmative action programs and other initiatives designed to promote workplace diversity, equity and inclusiveness (“DEI”), ranging from internships, hiring, and promotion to the availability of specialized training, professional development courses, mentorship opportunities, leadership coaching, and the like.
Notably, however, the Supreme Court declined to address how its decision would be applied in any other context—including employment—because the “compelling interest” in advancing racial diversity differs in higher education. Indeed, as noted, even after the Harvard/UNC decision, in the interest of achieving a racially diverse student body, a college or university may still utilize race as a factor in its admissions program, provided the program can survive strict scrutiny under the two-pronged analysis described above. By contrast, race-based employment decisions by state or local governmental employers generally cannot withstand the Equal Protection Clause’s strict scrutiny analysis.
For this reason, when properly designed and lawfully applied, affirmative action programs and DEI initiatives have never purported to authorize race-based employment decisions. Rather, they focus on increasing the diversity of applicant pools, removing unnecessary obstacles hampering the hiring and advancement of minority applicants and employees, educating the workforce on the benefits of diversity, and taking appropriate measures to ensure a welcoming work environment for all employees. Nothing in the Supreme Court’s Harvard/UNC decision precludes state and local government employers from enacting, or from continuing to maintain and apply, such programs and initiatives.
To this point, EEOC Chair Charlotte Burrows issued the following statement immediately following the Harvard/UNC decision: “[The Supreme Court’s] decision … does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background. It remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”
Concluding Observations and Recommendations for Employers in Light of the Harvard/UNC Decision
Notwithstanding the foregoing, it is likely that the Harvard/UNC decision will prompt some to pursue legal challenges to their employers’ affirmative action programs and DEI initiatives—particularly with regard to how they are allegedly being implemented. See, e.g., Young v. Colorado Dept. of Corrections, No. 22-CV-00145, 2023 WL 1437894 (D. Col. Feb. 1, 2023) (hostile work environment claims based on mandatory DEI training premised on concept that white persons are inherently racist). Employers can anticipate an uptick in such cases, as well as cases brought by white employees contending that they were wrongfully charged with violating their employers’ anti-harassment policies based on evidence tied to similar “white persons are inherently racist” concepts or other legally untested concepts such as unconscious or subconscious racial bias and microaggressions.
Accordingly, while not directly altering any existing employment laws, the Harvard/UNC decision nevertheless presents a timely opportunity for employers with affirmative action plans and DEI programs to consider conducting a self-critical analysis to evaluate how such plans and programs have been applied over the past several years and assess potential liability in view of the evolving legal landscape.
If you have questions regarding either the federal Pregnant Workers Fairness Act or the Georgia Superior and State Court Appellate Practice Act, please feel free to contact any member of Elarbee Thompson’s Public Sector Practice Group. As always, GIRMA members may contact the Public Sector Group directly via the GIRMA Helpline (800.721.1998 / girmahelpline@elarbeethompson.com).
1 Unlike UNC, which is a public university, Harvard is a private (non-governmental) institution and, as such, not subject to the Court’s equal protection analysis. Accordingly, Harvard’s admissions program was evaluated solely under Title VI of the Civil Rights Act.
2 The term “narrowly tailored” requires consideration of whether the compelling interest could have been achieved through a non-racial approach, through means having no or a reduced negative impact on other persons, or by using a more restrictive racial classification. See e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 n. 6 (1986).
3 For instance, the Court explained that preference can be given to a minority applicant who overcame racial discrimination, provided the admission decision is tied to that specific applicant’s courage and determination. In other words, any favorable treatment of the minority applicant must be based on his or her experiences as an individual—not on his or her race.
4 An extremely narrow and rarely utilized exception is recognized when race-based personnel decisions are deemed necessary for a limited period of time to rectify the lasting effects of prior discriminatory employment practices. See, e.g., Howard v. McLucas, 871 F.2d 1000 (11th Cir. 1989). Thus, in contrast to the higher education context, the only recognized exception potentially available to public employers is remedial in nature—not premised on the benefits of a diverse workforce.
5 While the EEOC does not investigate and resolve equal protection claims, many of the statutes over which it has enforcement authority—most notably, Title VII of the Civil Rights Act of 1964—are analogous and subject to similar legal analyses.
6 A possible exception may be Title VI itself. While not an employment statute per se, Title VI contains a provision—not at issue in the Harvard/UNC case—which makes it unlawful for recipients of federal funds to engage in employment discrimination under certain circumstances. See DOJ, Title VI Legal Manual, Section X, p. 1 (Mar. 18, 2019).
7 Employers should remain mindful that the extent to which any privilege attaches to self-critical analyses—especially in civil rights cases—is at best an open question. While there is authority strongly embracing the existence of such a privilege, see e.g., Reid v. Lockheed Martin Aero. Co., 199 F.R.D. 379 (N.D.Ga. 2001), the Supreme Court has never directly addressed it and the modern trend appears to be less receptive. Thus, engaging outside labor and employment counsel to conduct or participate in the analyses provides an additional layer of protection against disclosure in the form of the attorney-client privilege.