Supreme Court Ruling on Universities (Admissions) vs Federal Contractors (Employment)

The Supreme Court’s June 29^th 6-3 ruling ended the decades-old practice of race consideration in university admissions. This has led Kairos to address questions distinguishing affirmative action in higher education and employment.

Despite sharing the same terminology, “affirmative action” implemented by federal contractors bears no relation to the concept of affirmative action as previously implemented in the realm of higher education. Title VII of the Civil Rights Act is clear and explicit in this regard, stating that employers are strictly prohibited from taking race, ethnicity, gender, or any other protected characteristic into account when making personnel decisions.

In the following sections, we detail these differences, aiming to clarify any misconceptions for practitioners following the recent ruling.

• Schools may consider factors such as race and gender in the admissions process to create a diverse student body.
• The Supreme Court ruled that race can be one of many factors considered in admissions, as long as it is not the sole factor—a concept known as “holistic review”.

• Executive Order 11246 prohibits federal contractors and subcontractors from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin. The Order requires contractors to take affirmative action to ensure equal opportunity is provided in all aspects of employment.
• Affirmative action for federal contractors means taking affirmative steps to attract women and minorities for available employment opportunities and to ensure that candidates are evaluated fairly using non-biased job-related selection criteria.  Affirmative action regulations specifically state that goals “do not provide … a justification to extend a preference to any individual, select an individual, or adversely affect an individual’s employment status, on the basis of that person’s race, color, religion, sex or national origin.“
• In contrast to university admissions, where the central objective of affirmative action is to enhance diversity, the principal aim of affirmative action for federal contractors is non-discrimination. Beyond the establishment of an AAP, federal contractors must conduct an extensive range of analyses on their entire employment process to identify and eliminate policies or practices that create discriminatory barriers that adversely impact groups based on factors such as race, color, sex, sexual orientation, gender identity, religion, national origin, disability, veteran status, or other legally protected status. These analyses are critical to ascertain that the organization is fully compliant with the Order’s provisions prohibiting discrimination.
• Under Title VII of the Civil Rights Act, hiring decisions, in whole or in part, cannot be made on the basis of a person’s race or gender. Affirmative action requires employers to hire the most qualified applicant.

Employers should avoid quotas or decision-making based on protected class status, ensuring thorough training for hiring managers. Although the Court’s recent decision does not impact affirmative action for federal contractors, employers must be prepared to answer questions related to affirmative action and DEI initiatives.

If you have any questions or concerns, please do not hesitate to reach out to us directly. We are here to support you every step of the way.