June is traditionally the month when the Supreme Court issues its blockbuster opinions. Last year, the case with the biggest impact on employers was the Affordable Care Act opinion, in National Federation of Independent Business v. Sebelius, which upheld the health care reform law, albeit by calling the individual mandate a tax, which Congress had refused to do.
This year, the Court’s opinion in Fisher v. University of Texas, is one that could make a difference for employers and their current and future employees. The Court could issue this opinion as early as June 3, but it will come by the end of the month for certain.
The issue in Fisher is whether the Court’s earlier decisions interpreting the Equal Protection Clause in an educational context permit the University of Texas to use race in undergraduate admissions decisions they way they did. Plaintiff Abigail Fisher, a white applicant who was rejected by the University of Texas, says she was the victim of “reverse discrimination,” while the University says that its desires to increase diversity in the student body and to remedy prior discrimination permit the University to use race as a factor in its undergraduate admissions criteria.
Justice Kagan has been recused, so only eight justices will vote in the case.
Although college admissions and employment actions such as hiring and promotions are different, there could be a spillover effect from the Fisher opinion into the workplace. In the past, many employers have looked at the Court’s affirmative action requirements in educational cases to develop their diversity initiatives. To the extent that employers want to increase diversity in their workforce for business reasons, rather than merely to remedy the effects of past discrimination in their hiring practices, the Court’s opinion in Fisher may limit – or, less likely, expand – what employers can do.
Moreover, many employers that are government contractors are required to develop affirmative action plans, and sometimes diversity initiatives, to satisfy Executive Order 11246 and other discrimination regulations. These affirmative action programs are enforced by the U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP). The OFCCP will certainly be bound by the Supreme Court’s constitutional interpretation in Fisher. Employers subject to OFCCP regulations may need to change their affirmative action plans and diversity initiatives to comply with new OFCCP requirements.
Other voluntary diversity programs that employers maintain may also become subject to more scrutiny and litigation by disgruntled employees. There has always been a tension between Title VII of the Civil Rights Act of 1964 and other non-discrimination statutes, which tell employers not to discriminate and which permit claims for reverse discrimination by white and male employees, and the affirmative action requirements of Executive Order 11246, which say that race and gender must sometimes be considered in workplace decisions.
Private employers seeking to promote diversity may be given more leeway than public institutions that are subject to the Equal Protection Clause, but it will be interesting to see how broad the Court’s decision in Fisher will be. Some commentators believe that the Supreme Court will differentiate between affirmative action requirements in the educational context and in the employment context. Those commentators believe the Fisher case “ought to have no impact on Title VII.”
It is true that employment law is largely statutory and is based on Title VII of the Civil Rights Act and similar anti-discrimination laws. Therefore, employers will have to closely analyze the Fisher decision to determine whether it has a spillover effect on employment. However, in my opinion, employers can anticipate that employees and applicants will pursue attacks on diversity initiatives they think have disadvantaged them, until the post-Fisher rules become clear.
For more on this topic, see Affirmative action in employment, by John P. Furfaro, Risa M. Salins & Madeline Stavis, Skadden, Arps, Slate, Meagher & Flom LLP, April 11, 2013, and Race Case Outcome Could Affect Applicant Pool Diversity, by Allen Smith, October 12, 2012.
How do you think the Supreme Court’s opinion in Fisher will impact the future diversity of our workforce?