Supreme Court’s Affirmative Action Case: Not About But Entirely About Employment
Posted 06.28.13
Jonathan A. Segal

In Fisher, SCOTUS upheld (at least technically) affirmative action in higher education. While the Court reaffirmed that student body diversity could be a compelling state interest, the Supreme Court has made the burden so high for a program to be “narrowly tailored” that the Court has all but gutted “honest” affirmative action.

What about employment?  While the Supreme Court’s case has nothing to do with employment, it has everything to do with employment.  Same decision makers!

Historically, SCOTUS has offered more flexibility for voluntary affirmative action in education than in employment.  And, now, SCOTUS has made it even harder in education.

SCOTUS has never upheld voluntary affirmative action in employment absent a remedial purpose (narrowly defined).  The lower courts have held almost unanimously, if not unanimously, that, in the absence of a remedial purpose (narrowly defined), employers cannot give race,  gender, etc. a “plus,” even where the goal is laudable, that is, to create a culturally-diverse workforce.

What does this mean for diversity programs?  It means employers, now more than ever, must do two (2) things:

1. From a business perspective, make sure their legal hiring, promotional, mentoring, etc. practices are inclusive and tap into the talent in diverse communities.

2. From a legal standpoint, focus on diversity in experience, perspective, contacts, etc. and not race, gender or other protected factor.

Please e-mail me at jsegal@duanemorris.com for articles that address the above two points in more detail.

This blog should be construed as legal advice, creating an attorney-client relationship or applying to specific factual situations.

About Jonathan A. Segal
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .