How Will the Affirmative Action Ruling Impact Employment Law Claims?

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On June 29, 2023, the U.S. Supreme Court issued a ruling that university affirmative action efforts are discriminatory towards Caucasian and Asian students. The Court held that using race as a factor in admissions with an aim towards establishing a diverse student body violates Title VI of the Civil Rights Act of 1964, which bans discrimination in federally funded programs. In doing so, the Supreme Court ultimately banned affirmative action programs in universities and colleges.

The ruling says that federally funded university programs cannot use race in support of an admissions decision. In states where race-based admissions have already been restricted, representation of Black students has decreased. For many higher education advocates, the “decision marks a significant setback for colleges, which have relied on [affirmative action] for over 40 years to enhance racial diversity on their campuses and compensate for decades of both explicit and implicit race-based exclusion.”

What Does This Mean for Employment Law Claims?

The decision is likely to have significant unintended consequences. Although the recent case dealt with federally funded education, the holding could inadvertently lead to an uptick in workplace discrimination and retaliation claims, basing itself on the same logic as that found in the opinion. It will be difficult to claim that race-blind policies must exist in federally funded education but not in employment, especially since the law in question, the Civil Rights Act of 1964, governs both spheres.

The Court seems to believe we live in a post-racial society where race should not be factored into any decisions related to education or employment, but reality indicates otherwise. Employers across the U.S. continue to struggle to ensure that their workforces better reflect their communities. In places like Chicago, where the overall unemployment rate remains low, the unemployment rate for Black residents is significantly higher. For example, Chicago’s unemployment rate in August 2022 was nearly 5.8%, but the rate for Black residents was more than twice that, at 14.3%.

Black Americans remain underrepresented in most careers, and yet this decision may open the door to an influx of claims historically referred to as “reverse discrimination.” Despite the fact that straight Caucasian men still hold the majority of the most powerful positions in business and politics, some may use the Court’s decision to challenge employer policies that seem to favor hiring Black or other under-represented workers.

Caucasian workers may claim that race-based policies operate to their detriment, and are therefore discriminatory on the basis of race. Instead of Title VI, they will have to advance such claims under Title VII of the Civil Rights Act of 1964, which bans discrimination in employment, including on the basis of race.

The Court’s ruling may be viewed as an invitation to pursue legal action for new race-based claims in the employment context. Employers should be prepared to have their diversity, equity, and inclusion programs scrutinized under a framework of perceived “reverse discrimination” and be prepared for the likely challenges to come.