Our Task Force begins with the premise that different legal standards apply in the employment context compared to the educational one. The cases before the Supreme Court involve challenges to the race-conscious admissions policies of the University of North Carolina (under the Fourteenth Amendment) and Harvard University (under Title VI of the Civil Rights Act of 1964). A separate provision of the Civil Rights Act, Title VII, governs employment discrimination and was therefore not directly before the Court, though it was raised in the Court’s decision, especially in Justice Gorsuch’s concurring opinion.
Courts have looked at Title VII employment cases differently from the Title VI education cases. To withstand scrutiny under Title VII, race-conscious affirmative action plans must be supported by a remedial justification.1 By contrast, the admissions policies that were before the Supreme Court in the Harvard and UNC cases were defended solely on the “educational benefits of diversity.”2 The University of North Carolina expressly disclaimed a remedial justification for its policy3, and Harvard never asserted one. Because the admissions cases do not rely on a remedial theory, whereas the Title VII framework requires a remedial justification, the Supreme Court’s decisions in the admissions context are unlikely to result in any automatic changes in race-conscious employment plans under Title VII. Indeed, the challengers to the Harvard admissions policy conceded that the “remedial exception is still good law.”4
Moreover, because of the strict requirements related to race-conscious measures in the employment context, employers have often relied on race-neutral measures. Many employers, for example, have programs aimed at reaching out to invite diverse applicants to apply, but do not consider race as part of the decision of who to ultimately hire. This type of race-neutral plan is also employed by many educators, but Harvard and UNC were not among them. The Supreme Court therefore did not make any definitive rulings on the continuing viability of race-neutral plans.
Although the differing legal standards applicable to Title VII claims suggests that the Supreme Court’s decisions in the education context will not require immediate changes in the workplace context, there is some risk that lower courts will refer to the admissions cases to review workplace plans with greater skepticism. Additionally, there is some doctrinal overlap between the Title VI education cases and Title VII employment cases.
Our Task Force will be watching three potential areas of employment law that could change as a result of the Supreme Court’s education decisions: durational limits for affirmative action plans, deference to the decisionmaker, and recruitment initiatives.
Time Limits. One of the key reasons that the Supreme Court offered for its decision in the Harvard and the UNC cases was that the schools did not have a logical endpoint for their affirmative action policies. The Supreme Court has also required clear time limits in the Title VII context. Because of this commonality between the two strands of precedent, courts examining employment cases may import some of the standards from the Harvard and UNC cases into the employment context.
Deference. Another key part of the Supreme Court’s analysis in the Harvard and UNC cases was its refusal to defer to the schools’ judgement about how to create the most effective learning environment. In past cases, deference to the decisionmakers had played a large role in the Supreme Court’s willingness to permit affirmative action programs to continue.5 The Court had similarly deferred to employers about how best to shape their workforce.6 Having watched the Supreme Court chip away at that deference in the education context, we might now expect some lower courts to do the same in the employment context.
Recruitment. As a result of the Supreme Court’s decision, educators may start to approach diversity in the same way that employers do. In the education context, admissions officers have long considered race as one factor among many in a holistic review of each individual application. In the Harvard and UNC cases, the Supreme Court has instructed colleges and universities to move away from this practice. Following that guidance, many schools may now shift their focus to recruiting more diverse applicants. That move may make education-related DEI efforts look a lot more like employment-related DEI efforts. And the similarities between the two might then lead courts to merge the legal standards governing the two different contexts
How can companies move forward with DEI programs and still protect their businesses from litigation exposure? Hogan Lovells has created a task force on these issues to advise clients on the implications of these anticipated decisions for corporate diversity programs.
We know that you, like other responsible business leaders, value diversity in your workforce. Because of that, you may want to explore your options related to ensuring that your existing programs both comply with the settled legal standards in the Title VII context, and anticipate any changes that the Supreme Court’s decisions in the admissions cases will bring about.
We can help you work through these issues. Our team at Hogan Lovells has been working in this space for years, and have the knowledge and experience anticipating the Supreme Court’s next moves. Since leaving the government, Hogan Lovells Supreme Court and Appellate practice group co-head and partner Neal Katyal has developed a practice advising businesses and educational institutions both large and small regarding preference and diversity issues. His frequent partner in this work has been Jo-Ann Sagar, and we are now formalizing our advisory capacity here to help employers navigate these challenges.
Let us know if you’d like to set up a time to talk.
Authored by Neal Katyal and Jo-Ann Sagar.
References
3 Oral Arg. Tr. p. 90.
4 Oral Arg. Tr. p. 20.
5 See Grutter, 539 U.S. at 328 (deferring to education officials in admissions decisions).
6 See Weber, 443 U.S. at 206, (giving deference to employers in hiring decisions).
