What's the likely impact of expected Supreme Court decisions on affirmative action in university admissions on the ability to hire diverse teams?
For answers, we reached out to David Lat, a lawyer and writer who publishes the Original Jurisdiction newsletter and also has worked as a recruiter for law firms. Here's a transcript of our conversation, edited lightly for clarity:
What are the implications of the expected Supreme Court decisions around affirmative action at universities for workplace diversity efforts?
There could be very sweeping implications. The affirmative action cases arise under Title VI of the 14th amendment, and they arise in the education context. But there are analogous laws that relate to the workplace, such as Title VII, which prohibits employment discrimination based on race, color, religion, sex, and national origin. You could easily imagine the logic of a decision in the Harvard and UNC cases applying to the workplace. This has been a somewhat murky area because obviously employers have had diversity initiatives, and many employers have informally been taking into account things like race or national origin or gender or other things as 'pluses.' This may create some challenges in terms of how explicit employers can be, and in terms of the paper trail. So it could be very interesting and it will probably be a boon for employment lawyers.
A lot of companies don't explicitly take race into account in hiring, but they have a corporate goal of a diverse workforce. So in any individual hiring decision, race is not weighted explicitly but the reality is that it is a factor given the aim of having a diverse workforce. How could the court decisions impact an approach like that where race is not an explicit 'plus' in hiring?
Part of it will depend on what the content of the decision is and how broadly or narrowly written it is. You could imagine some kind of narrow ruling. Some people were toying with this idea of having it sunset in 2028, which is what justice O'Connor had mentioned in an earlier affirmative action decision. So it's not quite clear how directly it will apply to the workplace. I would expect follow-on lawsuits by people.
But going to your question, how does a plaintiff prove that they were discriminated against on account of a forbidden ground? Before I left to start to focus on my Substack newsletter, I worked for two years as a legal recruiter. I would often talk to employers who would say 'We place a priority on diverse candidates' and they didn't need to tell me any more than that for me to know what to look for.
But it was not the case that any individual candidate I rejected or didn't pass along to the employer would have some clear evidence that they were discriminated against because of their race or any other quality. I just happened to pick other people. And much like college admission decisions, it involved a gazillion different factors. So unless an employer does something really dumb and puts something in writing and somehow it gets back to the would-be employee, it could be very hard to mount these lawsuits. I remember a situation from years ago where somebody texted a colleague about why they were passing on this candidate and it had something to do with a forbidden ground, and they had accidentally texted the candidate instead. In that case, the person had some evidence to say, 'Look, I was discriminated against. Here's this text that was meant for somebody else and it came to me and it said, they passed on me because of x, y, or z.' But that's a very rare case. So as long as employers keep things general, they may be able to escape liability.
That said, there are some companies that are extra cautious and don't even want to get close to that. They may implement policies where they will no longer talk about diversity just to be on the safe side. It will depend on the company, it will depend on the company's risk tolerance. It could also be depend on the company's view of affirmative action. There may be some companies that have felt pressured into this by publicity reasons and will seize upon the Supreme Court decisions to say, 'Well, we would love to still have our diversity program, but our lawyers have told us it's a risk. So we are getting rid of our minority scholarship program or we're getting rid of our diversity language on our website.' So it could play out in a million different ways.
You're describing a chilling effect where diversity initiatives, people in roles such as chief diversity officers, funding for specific diversity internships could wind up being vulnerable. Some companies could choose to minimize that or get rid of it in the face of an abstract legal risk...
Exactly. Again, it would depend on the company. It would depend on their risk tolerance and it would depend on what they wanted to do anyway, because many times legal decisions are used to justify things that people or companies wanted to do.
There are instances where there are specific race-based policies or quotas, such as the 'Rooney Rule' which is a commitment to have someone from an underrepresented group in the hiring pool. There are board quotas. California has had a law requiring a specific number of women on publicly public company boards. There are the Nasdaq rules, which require disclosure of representation on boards for underrepresented groups. Would those sorts of things be directly challenged by the kind of ruling we expect out of the Supreme Court?
The logic of the ruling would be perhaps threatening to those types of policies. But again, the issue is who can sue over it? There is this legal concept of standing, which means that if you're going to sue over something, you have to be able to demonstrate a concrete injury. And so if I'm passed over as a board member because this company had to comply with California's rule, how can I show that I was the injured person? It could get a little tricky. This is sort of a murky area of law. There are some decisions that talk about how you have an entitlement to an equal playing field. So maybe then you could say, 'I don't need to show I was directly harmed. I was entitled to an equal playing field, and clearly this company doesn't have an equal playing field.' But it's very tricky. It could vary from state to state because states have different laws.
I think disclosure and tracking is going to be less problematic than a hard requirement. So maybe we will see more things like, 'let's track diversity, but let's not have an outright requirement or quota or number.' I could see that being one direction, things going. It's just really, really tricky. And then you get these complicated issues of preemption or interaction between federal and state law. When does federal law trump or displace state law? So this could get really messy really fast.
One of the areas directly related to affirmative action in admissions is hiring out of elite universities. So if the racial and ethnic composition of universities changes as a result of a court decision, the sectors that recruit directly out of universities—investment banks and consulting companies, for example—could wind up having less diverse talent pools for entry-level jobs. Do you think that's a likely consequence?
Many companies will still desire diversity even if they have to be more careful about how they seek it out. One possible positive consequence of a ruling against affirmative action is we could see both schools and employers engage in more affirmative action as a form of outreach to underrepresented communities as opposed to an explicit 'plus' factor. To take the example of the investment banks and the management consulting firms, if Harvard and Yale are suddenly a lot less diverse, maybe they'll start recruiting more at historically Black colleges and universities. Maybe they'll start recruiting more at state universities. It could actually be good if it leads companies and universities to take a broader approach to talent as opposed to just sticking by the old standbys. It's hard to say what's going to happen, especially since we don't even have a ruling yet. And sometimes decisions come out differently than the way the oral argument suggests. Not often, but sometimes. So we still have a lot of questions here.
Public opinion actually supports the ending of affirmative action both in universities and workplaces, right?
Yes, that is true. Generally the polling shows that between two-thirds to three-quarters of people don't want race to be a factor in educational and employment decisions. It also depends on how you word the question because something like two-thirds to three-quarters of people also say things like, 'I think diversity is important in education or employment.' So there are nuances here. But when the question is phrased explicitly as taking it into account as a factor, generally it polls poorly. There was an attempt in California to repeal Prop 209, which forbids the consideration of race in education and employment with the state. And that failed in a very blue state, California. So that is noteworthy.
If you were in role with some responsibility for talent at an organization, is there anything to be doing or thinking about or watching right now?
It's probably too early to be consulting your lawyers because they don't have anything to work with. But one thing companies can start thinking about—which they should always be thinking about—is what can we do to ensure a diverse workforce independent of anything like a plus factor or a quota? So maybe this is a good time for employers to start looking at universities they recruit from. Maybe this is a good time for employers to be reviewing their hiring process for implicit bias. There are a lot of things that employers can do to stay ahead of the curve, even if they don't have much to work with right now legally, because we are months away from a decision. A case like this—which is one of the biggest cases of the term—is almost certainly going to come down fairly late June perhaps. So it would be perhaps a waste of lawyers' time and the company's money to have a big workup done now. But definitely I think from the HR perspective, companies can start thinking about what they can do to ensure diverse workplace without using quotas or 'plus' factors or anything like that.
Broaden the group of educational institutions that you recruit from.
Dismantle sources of bias in hiring to unlock greater diversity without needing quotas or targets.