Labor and employment law update!

September 20, 2023 Posted by GB

In two recent Supreme Court cases, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina the issue before the Court was “whether the admissions systems by Harvard College and the University of North Carolina . . . are lawful under the Equal Protection Clause of the Fourteenth Amendment.” The claims in each lawsuit alleged the institutions’ “race-based admissions programs violated, respectively, Title VI of the Civil Rights Act of 1964, . . ., and the Equal Protection Clause of the Fourteenth Amendment.” Since its addition to the Constitution, “[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of the invidious racial discrimination in the States.” Id. This means that any exception to racial discrimination must undergo a “strict scrutiny” analysis. The strict scrutiny test is comprised of two parts: (1) the Court must determine if “the racial classification is used to further compelling governmental interests,” and (2) “if so, . . . ask whether the government’s use of race is narrowly tailored – meaning necessary – to achieve that interest.” Court precedent had previously only held “two compelling interests that permit resort to race-based government action.” Those two interests were, “remediating specific, identified instances of past discrimination that violated the Constitution or a statute” and “avoiding imminent and serious risks to human safety in prisons . . . .” Ultimately, the Court determined that neither previous compelling interest was present in the pending cases and both Harvard College and the University of North Carolina’s admission processes violated the Fourteenth Amendment’s Equal Protection Clause because “the use of these opaque racial categories undermines, instead of promotes, respondents’ goals.” “The entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well.”

Notably, this concept is one that is not just applicable to schools but also applies in the workplace. As a result of the Court’s holding, there are currently three pending Federal cases that are arguing the Court’s ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College is applicable to the labor and employment practice area – that is, racially based decision making in employment violates Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment.

There are also claims being brought by the shareholders of MasterCard and T-Mobile requesting these companies disclose diversity policies using this very same framework.

The key takeaways from the Court’s recent decision for employers:

Review current diversity plans, including hiring and promoting criteria to ensure decisions are not being made on the basis of a protected class, i.e., race, gender, religion, etc.;

Assess whether there are factors being applied in employment policies and procedures that relate to race;
Question if targets are being used to judge diversity;

and Review contracting practices to analyze whether there are any racial standards and/or minimums when suppliers and/or contractors are selected, including whether the selected supplier and/or contractor has policies related to diversity that are in line with the Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment.

Are you a business owner with concerns about how these decisions might impact you? Contact us today if so. The attorneys at Mackey Butts & Whalen, LLP are informed and ready to assist you.

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