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