By: Joanna Colosimo and Evan Szarenski
This article was originally published in Law360 and has been modified for the DCI blog.
Before the end of the summer, the U.S. Supreme Court is expected to decide two cases that will have a major impact on the scope of affirmative action in college admissions.1
Despite sharing the same name, affirmative action in the higher education context is very different from the affirmative action obligations of federal contractors in the employment context.
While employers should be prepared to communicate with employees based on the Supreme Court ruling, the eventual decision should not have a direct impact on any affirmative action obligations.
Background
In 2014, Students for Fair Admissions Inc. sued both Harvard University and the University of North Carolina in separate actions. SFFA alleged that Harvard violated Title VI of the Civil Rights Act by favoring Hispanic and Black applicants in its admissions process. SFFA alleged that UNC violated Title VI and, because UNC is a public institution, the equal protection clause of the 14th Amendment.
Both Harvard and UNC won after separate bench trials.2 Harvard's win was affirmed by the U.S. Court of Appeals for the First Circuit.3 SFFA appealed its loss in the UNC case to the U.S. Court of Appeals for the Fourth Circuit but sought certiorari from the Supreme Court before an opinion was issued.4
The question before the Supreme Court is whether institutions of higher education can use race as a factor in admissions.
Affirmative Action in the Employment Context
The cases before the Supreme Court focus exclusively on student college admissions and do not reflect federal affirmative action in the employment context.
In the U.S., federal contractors and subcontractors that meet certain thresholds for contract amounts and employee counts must abide by affirmative action regulations.
These regulations — which are a product of Executive Order No. 11246 on nondiscrimination in government contractor hiring, Section 503 of the Rehabilitation Act,5 and the Vietnam Era Veterans' Readjustment Assistance Act,6 — require covered employers to take affirmative action to ensure applicants are employed, and that employees are treated without regard to race, color, religion, sex, sexual orientation, gender identity or national origin.7
Federal contractors are also required to take affirmative action to employ and advance in employment individuals with disabilities and protected veterans.8 Discrimination on any of these protected bases is prohibited.
While both Harvard and UNC explicitly considered race in their admissions criteria, affirmative action in the context of employment does not mean hiring or promoting based on quotas, set-asides or preferential treatment. The regulatory language from Executive Order No. 11246 explicitly states that using race or ethnicity as a factor in decision making is illegal in the employment context.
Instead, affirmative action in the employment context focuses on removing barriers to protected classes through affirmative steps like outreach and recruitment for women, racial and ethnic minorities, individuals with disabilities, and protected veterans. While the setting of aspirational placement goals for certain protected groups is often required of federal contractors and subcontractors, federal affirmative action regulations make clear that those goals cannot function as a quota and that quotas are forbidden.9
OFCCP Enforcement Trends
Affirmative action regulations are enforced by the Office of Federal Contract Compliance Programs. This agency, which is a part of the U.S. Department of Labor, heavily utilizes compliance reviews to enforce these regulations.
Although the OFCCP still enforces the affirmative action provisions of the regulations, the agency has focused mainly on enforcing nondiscrimination in employment in recent years. An examination of the OFCCP's monetary relief results from the recent past highlights the agency's enforcement trends.10
The table below shows the total class members from each protected category included in monetary settlements over the past five fiscal years — fiscal year 2019 through the first quarter of 2023. As noted by the table, the "other (male and/or white)" group is the thirdlargest class member group against which the OFCCP found discrimination, following only Black class members and female class members. Specifically, 22,934 male and/or white employees or applicants have received back pay and/or salary adjustments due to OFCCP enforcement efforts.
Note that the "minority" group in the chart is a subtotal of class members who identify as Black, Hispanic, Asian/Pacific Islander and Native American, or whose specific minority group is unknown.
This shows that the OFCCP's enforcement does not focus on any particular race or ethnicity category or sex category. Rather, it enforces anti-discrimination requirements for everyone in a covered protected category, typically upon the discovery of both statistical and anecdotal evidence of discrimination during the course of a compliance review.
Class Members by Basis of Discrimination
What Affirmative Action Employers Should Consider
If the Supreme Court's decision in the Harvard and UNC cases indicates that using race or ethnicity as a factor in the admissions selection process is illegal, it would align with the OFCCP's regulations and how it enforces selection decisions in the employment context, where using race or ethnicity as a factor in a personnel decision is not permitted.
Although it is possible that some employees and applicants unfamiliar with the nuance of OFCCP compliance may question a company's affirmative action policies, the OFCCP's regulations and its enforcement trends continue to align with the regulations and case law covering all protected groups. As we anticipate the Supreme Court's decision, organizations subject to federal affirmative action provisions should consider a post-decision communication plan for employees.
This could include the following:
Savvy employers who comply with the OFCCP's regulations related to affirmative action should anticipate questions in light of the upcoming Supreme Court ruling. Knowing that the OFCCP ensures nondiscrimination for all parties may be a useful discussion point for employees, applicants or individuals unfamiliar with the nuances of the regulations related to the employment context.
References
1 Students for Fair Admissions, Inc. v. Univ. of N.C., No. 21-707 (U.S.); Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 20-1199 (U.S.).
2 Students for Fair Admissions, Inc. v. Univ. of N.C., 567 F. Supp. 3d 580 (M.D.N.C. 2021); Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 397 F. Supp. 3d 126 (D. Mass. 2019).
3 Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 980 F.3d 157 (1st Cir. 2020).
4 Petition for a Writ of Certiorari Before Judgment, Students for Fair Admissions, Inc., No. 21-2263 (U.S. Nov. 11, 2021).
5 29 U.S.C. § 793.
6 38 U.S.C. § 4212.
7 41 C.F.R. § 60-1.4(a)(1).
8 41 C.F.R. §§ 60-300.5(a)(1); -741.5(a)(1).
9 41 C.F.R. §§ 60-2.16(e); -300.45; -741.45.
10 https://www.dol.gov/agencies/ofccp/about/data/accomplishments, Information obtained from OFCCP's website on May 24, 2023.